If You're Not "Sovereign," You're Servile

Ultima ratio Regum: Where the State exists, the law does not.

 

Like most epithets of its kind, the expression “sovereign citizen” is more frequently used than defined. One of the many luxuries the Regime provides for itself is the option of defining criminal categories so vaguely that no organizational alignments are necessary. In this way, one can be accused of participating in a “terrorist movement” or seditious conspiracy on the basis of imputed affinity, rather than proven conduct.

Eric Matthew Frein, the Pennsylvania “survivalist” charged with murdering one State Trooper and wounding another in an ambush, has been described as a “sovereign citizen.” Yet the definition of that term is expansive enough to include  Antonio Buehler, a West Point graduate and peace activist whose “offense” was to be assaulted and arrested without cause while video-recording the violent and abusive arrest of a woman in Austin, Texas on New Year's Day in 2011.

Police investigators in Pennsylvania insist that Frein had expressed anti-government and anti-police attitudes, and that his eruption was the product of a long-simmering hostility toward law enforcement.  Frein hasn’t disclosed his motives. No evidence has been produced that he was an adherent of a “sovereign citizen” group, or that he has embraced any of the tenets expressed by people found in that variegated and decentralized movement.

Buehler and his colleagues in the police accountability movement, by way of contrast with Frein, explicitly repudiate violence and insist on strict adherence to legal ordinances by both the police and the citizen activists who monitor police conduct. Yet they were subsumed into the “sovereign citizen movement” through a police intelligence report describing their peaceful activism as a threat to “officer safety” and an “Immanent [sic] threat to officers and their families.” 

We're supposed to sympathize with the guy on the left.

Invoking a distinction presented in the most recent report on the subject from the Department of Homeland Security, some officials would insist that Buehler and his colleagues are part of the “non-violent sovereign citizen” movement, which “reject[s] the authority of government, law enforcement, and the courts….” 

However, Buehler has won four consecutive court victories – one acquittal and three dismissals – over spurious charges filed against him by officers with the Austin Police Department.  For their part, Buehler’s antagonists at the APD have claimed exemption to it through the magical incantation of “qualified immunity” – a claim the courts accepted by a federal judge who dismissed Buehler’s civil rights lawsuit against the department.

Buehler and his colleagues never sought to defraud anyone. They didn’t engage in what the Regime calls “paper terrorism” – filing bogus liens or legal papers against public officials. They didn’t take refuge in pseudo-legal Gnosticism, as have some people identified as “sovereign citizens.” The only connection of any kind between Frein and Buehler is a shared antipathy toward the police – which in Buehler’s case was result of first-hand experience with the corrupt, abusive, and criminal behavior of the state’s costumed enforcement caste.  In its most common application, then, the expression “sovereign citizen” apparently refers to anybody who believes that police should be servants, rather than overseers.

One documented trait of violent people associated with the “sovereign citizen” movement is a tendency to mimic the depraved, insouciant lawlessness of the people who presume to rule us. This often happens in a paroxysm of despairing violence on the part of someone who had sincerely tried to work within a “justice” system that is designed to prevent just outcomes.

Such was the case with Dennis Marx, who died in what was called an episode of “suicide-by-cop” by a “sovereign citizen extremist” at Georgia's Forsyth County Courthouse last June 6.

After arriving at the courthouse, Marx – armed with several firearms and a variety of non-lethal grenades – opened fire. A large police contingent, including a SWAT team, quickly responded, and Marx – who shot and wounded a deputy – was dead within a few minutes. This happened on the same morning Marx was scheduled to accept a plea bargain on marijuana-related charges.

 

Clueless, or pretending to be: Sheriff Piper.

“Marx has been referred to as a `sovereign citizen' who was anti-law enforcement and anti-government,” claimed the local newspaper, without elaborating on the basis for that characterization. According to Forsyth County Sheriff Duane Piper, Marx was well-known to his department, but he insisted that the motive for his attack at the courthouse “has yet to be determined.”

Sheriff Piper's statement occupies a piece of rhetorical real estate located at the corner of “obtuse” and “disingenuous.” He must certainly have known that Marx’s desperate rampage was the act of a man standing at the threshold of a ruined life.

Marx, a construction contractor and part-time firearms dealer, had briefly been employed by the Transportation Security Administration, but other than that he had no criminal background. Yet he faced eleven felony charges, the loss of his home and property, and up to ten years in prison as a result of a SWAT raid that had uncovered a single ounce of marijuana.

At least $50,000 in cash, ammunition, and other property had been stolen during the raid and kept in the name of “asset forfeiture.” Like so many others in similar situations, Marx didn't have the financial resources to defend himself in court – especially when the self-styled sovereigns who operate the “official” courts insist that the laws don’t apply when the State’s agents confiscate your property.

In August 2013, without the benefit of legal counsel, Marx filed a civil rights lawsuit against the Sheriff’s Office, following it up two months later with a second amended complaint that described in detail the abuse he and a visiting friend experienced during the SWAT raid. The lawsuit, filed in good faith by someone clinging pitiably to misplaced faith in the “justice” system, was summarily dismissed by officials who displayed their familiar contempt for the idea that those who enforce the “law” should be subject to it. 

Nothing left to lose: Dennis Marx.

Marx didn’t attack the courthouse out of an ideological hostility to law enforcement.  His grievances were palpable, practical, and intensely personal.

When Marx arrived at the courthouse he carried zip cuffs. Sheriff Piper says that this demonstrates that Marx was prepared to take hostages. Another possibility is that Marx, all avenues of redress foreclosed to him, was carrying out what he considered to be a one-man equivalent of the SWAT raid that took place in his home three years earlier.

During the August 2011 raid, Marx recounted in his lawsuit, the SWAT operators kicked in the door to his home and “set off `Flash Bang Grenades’ upon gaining entry.” At the time of the attack, Marx was armed but put up no resistance made no “attempt even to touch his handgun.” Despite being entirely submissive, Marx endured “repeated strikes and blows, arm twisting, and knees and boots into his back and legs” and “was subjected to a `beat down’ and forcibly restrained … for an extended period of time.”

None of the invaders displayed a warrant, and when the warrant was tardily provided to Marx “there was no request or authorization for a `No Knock’ provision” in the document.” At one point during the home invasion, Deputy Noah Sprague “`dropped’ his taser on the hardwood floor and he and other Defendants … shouted `Gun! Gun! Gun!  -- and drew their weapons.” This left Marx “hugging the floor in fear for his life.”

Since none of the assailants had remembered to bring handcuffs, Marx was pinned to the floor at gunpoint, for hours, by a succession of deputies. Thus his decision to bring zip cuffs during his retaliatory strike on the courthouse could be seen as a courtesy of sorts.

His home was vandalized, his valuables were plundered, his assets were seized, and his reputation was indelibly tainted as the result of the arrest.  The people responsible for visiting this ruin upon him were preparing to throw him in a cage because he possessed a single ounce of marijuana. Bereft of options and devoid of hope, Marx exercised what could be called the “Bobby McGee” variety of freedom – the violent recklessness of someone who had nothing left to lose. If his life was to be stolen from him, he sought to impose a price of some kind on the thieves who were responsible.

Assuming that Dennis Marx falls within the “sovereign citizen” taxonomy, another suitable definition of that term would be: Any individual who, deprived without cause of everything he owns and any prospect of a decent future, emulates the lawlessness and sense of impunity exhibited by the police and government officials who had targeted him.

Every State is operated by people who demand submission from their subjects, and who treat resistance as a capital offense. They also exempt themselves from the “laws” they impose on others while granting similar privileges to their allies and cronies. There are always people like Dennis Marx who reach the limits of submission – often after they discover that being submissive will earn them nothing when their self-appointed rulers target them for destruction. The Regime’s behavior guarantees that this sub-population will grow.

“Sovereignty” is a claim of ownership. If individuals cannot be “sovereign,” their only choice is servility. There was once a thoroughly imperfect but in many ways commendable country on the North American landmass that was created by people who understood that principle, and shed blood in righteous defense of individual liberty. That country has been supplanted by a soyuz in which even speaking of such things is often treated as a crime.

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SWAT Raids for Mundanes, Taxi Rides for the Elite

Scenes from the American Soyuz: More than 120 "door-kicks" take place each day.

 

Summoned from his slumber by the insistent pounding on his front door, Mark Casterline opened his bedroom window to ask what was wanted. By way of reply a blinding spotlight was trained on him. An instant later his front door was kicked in to admit more than a dozen armed men, who dragged him naked from his bed.

“They intended to kill me,” Casterline said during an interview in the kitchen of his home outside of Ontario, Oregon. “I was sound asleep when the SWAT team showed up and had no idea why they were in my house. They came thundering in and I hear clicking noises as they pointed their guns at me. They were going to take me out.”

The 3:00 AM raid by the Malheur County Sheriff’s Emergency Response Team was carried out without a warrant of any kind. Several years after the event, the shattered front door still bears the impression of the jackboot that was used to kick it in. The rationale for deploying a paramilitary team to Casterline's property was a claim made by an antagonistic neighbor, identified in a subsequent lawsuit as Phil Youngblood, that Casterline was either “drunk or high,” and that he posed a threat to any officer who checked in on him.

Apparently, leaving him unmolested wasn’t an option, nor was conducting a conventional “welfare check” if there was some legitimate concern over his condition.

A “welfare check” consists of a single officer, dressed in conventional attire, politely knocking on the door and making a non-confrontational inquiry about the resident’s well-being. In this case -- as in a subsequent raid conducted a short distance away in Letha, Idaho – the “welfare check” mutated into a military-style assault because of the target’s history with law enforcement.

Casterline had a “history” with law enforcement. To be specific, he had been abused and injured by police roughly twenty years earlier in a case of mistaken identity. He was also known to be a gun owner. Thus the possibility that he harbored lingering – and entirely understandable – resentment over his mistreatment was deemed a potential threat to that most precious of all things, “officer safety.”

On the evening before the raid, according to the lawsuit, Youngblood called the police to report – falsely, as it turned out – that he had seen Casterline driving while intoxicated. A Malheur County Sheriff’s Deputy found the truck in a ditch on Casterline’s property, and reported that there was “nothing unusual” on the scene.

Shortly thereafter, Oregon State Trooper Ryan Moorehead conducted a follow-up visit with Youngblood, who told them that he shouldn’t “approach him by himself.” As the Trooper was assuring Youngblood “that I would request a backup officer … we heard a loud gunshot,” Moorehead wrote in his official report. He also recorded that at the time Casterline’s house was “obscured by vegetation, so we could not see in combination with the dark.”

Moorehead provided a conflicting account in a probable cause affidavit, claiming that “as I approached [Casterline’s] home a single shot was fired and officers set up a perimeter.” Moorehead characterized that gunshot as “an intimidating gesture.” In a separate report, however, OSP Sergeant Mark Duncan acknowledged that “It is unknown whether [Casterline] was shooting at police or not.”

Furthermore, there wasn’t any evidence that Casterline had been shooting at anybody.

The sound of gunfire was hardly a novelty in the neighborhood, since Youngblood operated a private shooting reserve used by personnel at the Snake River Correctional Institution, which is located a few miles away.

Troopers Moorehead and Duncan were unable to confirm who fired the gunshot, in what direction it was fired, or the intent of the person who fired it. 

Rather than addressing those matters, the officers simply ticked the required boxes on their “Threat Matrix,” and the Special Response Team began planning an assault on Casterline's home.

During the next four hours, as the tactical team was assembled from officers in both Ontario and neighboring Vale, no effort was made to obtain a search warrant. Given that the team was responding to a supposed threat against law enforcement officers, there is ample justification for Mark's belief that the stormtroopers intended to kill him, rather than take him into custody. One of the raiders commented that they had expected Mark to commit “suicide-by-cop,” and asked the naked, terrified man if he “knew how close [he] came to being shot.”

It should be recalled that Casterline’s only “threatening” action thus far was to open a window and ask the officers what they wanted.

A total of seventeen people – including Robert Norris, who at the time was the Malheur County District Attorney – surged into Mark's home, compounding the home invasion with an illegal search. The invaders seized four firearms and filed a variety of charges against the victim, all of which were dismissed in a subsequent suppression hearing because the search was patently illegal.

A police stenographer employed by the Argus Observer dutifully retailed the official line that the SWAT raid had come at the end of a “four-hour standoff” during which Mark had refused to come to the door or answer the phone. All of this, predictably, was untrue: The first legitimate effort the police made to “contact” Mark came when one of the raiders used his jackboot to kick in the front door.

“Once they charge you with something you don't know what the outcome will be, even if you're innocent,” Mark commented in 2007, shortly after being acquitted on a DUI charge arising from the raid. “Once they stick a hook in you, you don't know if you'll get off it.”

That assessment was the sober product of Casterline’s long and thoroughly disagreeable experience with the racket that has appropriated the title “justice system.”

Mark is a stocky 57-year-old man who suffers from chronic pain – which he treats with medical cannabis -- and often walks with the assistance of a cane. Some of his injuries reflect decades of work as a farmer and mechanic, or mishaps such as a nearly fatal motorcycle wreck that occurred several years ago. 

Some of the wounds – such as a permanently damaged elbow, and a hernia that often makes it difficult for him to sleep – are battlescars from decades of unprovoked conflict with local police.

“For some reason, the police here in Ontario thought I was a Hell's Angel or something, and they keyed on me after I moved here about thirty-three years ago,” Mark told me.

Shortly after his arrival, Mark was enjoying a dinner date at a long-gone Ontario nightclub called Moore's Alley when “two cops grabbed me from behind and ripped me out of my chair,” he recalls. “They didn't tell me what was going on; they just beat me up in front of my girlfriend and hauled me off to the jail in Nyssa.”

Casterline’s hernia was inflicted by either a club or a flashlight wielded by one of the officers who attacked him. The assault was a product of mistaken identity – and it resulted in no punishment, of course, because the assailants were protected by “qualified immunity.” The charges were quickly dropped, but Mark – according to his account -- became a preferred target for law enforcement harassment.

“They’ve dragged me in more times than I care to remember,” Mark recalls. “I’m not a criminal, but for some reason they decided to treat me like one.”

Eventually, Malheur County paid Casterline a token amount to settle his lawsuit “with prejudice.” Several of the deputies involved in the raid went on to distinguish themselves in similar dubious ventures.

Deputy Robert Speelman, who led the SWAT team that evening and whose boot mark still adorns the front door to Casterline’s house, coordinated the MCSO’s years-long campaign of official harassment against the family of local cattleman Sweeny Gillette, thereby precipitating a $9.3 million dollar lawsuit. 

Williams.

Deputy Brad Williams, who was one of the first through the door in that raid, headed the MCSO’s campaign against the 45^th Parallel medical marijuana co-op, which extracted hundreds of thousands of dollars in “forfeited” cash and property – including a huge volume of confiscated marijuana for which no adequate accounting has ever been provided. 

Williams also holds a seat on the Vale City Council, which will soon be collecting tax proceeds on marijuana sales. In other words, he will be collecting “proceeds” on marijuana sales -- the same “offense” for which William Esbensen and the other operators of the 45^th Parallel were prosecuted.

Deputies Brian Belnap and Casey Walker were also kitted out in paramilitary drag during the raid on Mark Casterline’s house. They played an interesting role in a recent incident that started out in similar fashion – but ended much differently.

On January 31, the MCSO responded to a complaint that an apparently intoxicated driver was “yelling and revving his car engine.” Belnap and Deputy Walker arrived at the scene and found that the drunken driver was Matt Hawley, Superintendent of the Vale School District and – much more importantly – coach of its undefeated state champion high school football team.

 

Belnap.

Hawley was visibly drunk and emitted “an overwhelming odor of an alcoholic beverage,” wrote Deputy Walker in his report (which consistently referred to the subject by the familiar first name “Matt,” rather than the formal “Mr. Hawley”). Behind the driver’s seat of the car could be seen “a bottle of what appeared to be hard alcohol.” He was “dishonest” and “not cooperative” when asked “about his drinking and … where he began to drink.”

According to Hawley, he was visiting the home of a long-time girlfriend. He had sent the woman more than 30 text messages in the hours leading up to the incident. Deputy Belnap explainedthat the woman “didn’t respond as she [was] trying to avoid him.” In fact, the harried woman had “headed to Boise so she wouldn’t have to be around Matt.”

“I asked Matt how he would feel if his students found out about the incident,” reported Deputy Walker (who has starred in anti-drunk driving skits presented to local high school students). “Matt stated that his students will never know about this. I explained to Matt that he could get back on the road and at his level of intoxication he could crash[,] hurting or killing someone and then everyone would know.”

Rather than arresting Hawley, or writing him a citation, the deputies called Sergeant Dave Kesey, who “gave Matt a ride to his residence in Vale.”

The deputies actually handled this matter appropriately – assuming that their actions would represent a uniform approach to incidents of this kind. No one had been injured, no property damage had been done, nobody filed a criminal complaint, and Hawley’s potential threat was neutralized by having someone drive him home. 

 

How it's normally done: Deputy Walker "arrests" a student.

All of those elements were present in the case of Mark Casterline – stipulating, for the purposes of this discussion, that the report of his intoxicated driving was accurate. One important difference is that Casterline was on his own property – not that of someone he could have been accused of stalking.

Hawley’s comrades in the school district did their respectable best to validate his insouciant statement that his students would “never know” about his behavior. Hawley was quietly placed on leave and temporarily replaced as superintendent by Dr. Stephen Phillips. When the Argus Observer inquired about Hawley’s absence, school board chairman insisted that he couldn’t comment on “an employee matter.”

Malheur County Sheriff Brian Wolfe defended the decision not to cite or arrest Hawley under circumstances that would certainly have led to that result but for the identity of the subject.

“It is not illegal to drink alcohol and drive,” insisted the sheriff. “It’s unlawful to drive under the influence.'"

This is a perfectly defensible distinction that would have been summarily rejected by Sheriff Wolfe and his deputies if the drooling, stupefied motorist hadn’t been one of the most celebrated members of Malheur County’s nomenklatura. 

In dealing with Mark Casterline – a man who allegedly got drunk on his own property -- the MCSO staged a SWAT raid; in dealing with Matt Hawley – who was behaving as an obstreperous, drunken stalker who had chased a woman from her property – the deputies offered taxi service, and the sheriff became party to a cover-up. That’s how they roll in Malheur County. But then again, that's how "they" roll anywhere the political class has a police force at its disposal.

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An Innocent Man: Scott Molen's Bittersweet Victory

 

"My Angel": Scott Molen with his wife Connie (right) before his legal ordeal.

“I’m trying not to hate, but rather to enjoy the beauty we can see in life,” observes Scott Molen. That worthy sentiment is all the more remarkable coming from someone whose life has been permanently disfigured by the State’s proprietary brand of ugliness.

In June 2007, Scott was convicted in Ada County, Idaho of “lewd and lascivious conduct” with his step-granddaughter and sentenced to 20 years in prison. The case presented against Scott consisted of the uncorroborated, self-contradictory testimony of the young accuser. The prosecution quite thoughtfully kept their presentation otherwise uncluttered by evidence.

During voir dire, assistant prosecutor Josh Taylor explained to the jury that “you’ll hear testimony from a small child. There won’t be any DNA evidence or other types of evidence of that sort.” So zealous was the prosecution to avoid confusing the jury that they suppressed – until half-way through the trial -- the results of a detailed medical examination that found no physical symptoms of sexual assault. 

While austere in providing proof, the prosecution was very generous in defining the offense for which Scott was on trial. He was formally charged with sexual assault – in essence, the rape of a child – but the lead prosecutor, assistant Attorney General Justin D. Whatcott, was permitted by the trial judge to redefine the offense as “lewd and lascivious conduct,” which had a much lower threshold: Rather than physically violating the child, the defendant was accused of improperly “touching” her. This approach allowed the prosecution the luxury of barraging the jury with lurid claims it was not required to prove. 

The prosecution was well aware of the fact that it was riding a very weak case. 

Theresa Gardunia, the original prosecutor in the case, “told me I could plead guilty to one count of injury to a child, with one year in jail,” Scott recalled to me. “I was also promised that I wouldn’t be a registered sex offender. But I didn’t do what they accused me of doing. I would never do such a thing to a child. I had made a lot of mistakes, and I had been in trouble with the law. I didn’t try to hide it. But I was not going to volunteer to serve time for something I would never do.”

Most people convicted of crimes maintain their innocence. Few, however, can cite concurring testimony provided by the foreman of the jury that convicted them.

"When you boil the whole thing down and look at it," jury foreman Ken McKay admitted to a private investigator roughly a year after Scott was sent to prison, "there wasn't a single shred of evidence." Four members of the jury, McKay recalled, were “dug in” on behalf of Scott’s innocence. Several others “had decided that he was guilty pretty early on and there was really no reasoning with them about that.” 

An engineer by training – his professional credo was “In God we trust, everybody else bring your data,” the jury foreman told the investigator – McKay maintained that he had been skeptical about “fantastic charges” made by the prosecution. For instance, the jury was told that “there was a pair of [girl's] undergarments that had a blood stain in them.” His misgivings grew when that critical piece of evidence, although being prominently referred to in the prosecution’s case, was “never produced.” 

This was not an oversight, nor the product of mere incompetence. It was a “Brady violation” – deliberate prosecutorial misconduct intended to conceal exculpatory evidence. This much-discussed but never-seen piece of evidence was supposedly discovered at a time when the alleged victim was living with her mother and an abusive boyfriend in Phoenix, roughly 1,000 miles away from Scott. Furthermore, the mother claimed to have found it several months before she sent the girl back to visit the alleged molester a second time. 

Scott and Connie hosted the child during the summer of 2004 and 2005. They had become concerned about the dissolute and addictive behavior of the young girl’s mother, who shared her apartment with a succession of live-in boyfriends. In the interest of providing the girl with a stable, healthy environment, the grandparents expressed interest in adopting her. 

Shortly thereafter, the girl told some friends that her grandfather – Scott – had “kissed” her. This was described as “disclosure” of sexual abuse.

She was interrogated in a tape-recorded interview by Boise Police Officer Tammy Kennedy, who claimed that the girl recounted “multiple” assaults – including a dozen instances of “full intercourse.”

The tape recording made by Officer Kennedy was “lost.” She subsequently filed a detailed official report replete with vulgar descriptions of sexual acts that are not likely to have been offered by an eight-year-old girl. However, that report was not filed until after the child had been interviewed by Alisa Ortega, a nurse employed by the Child At Risk Evaluation Services (CARES) of St. Luke's Hospital in Boise. A second CARES nurse conducted an extensive, videotaped interrogation of the child.

As is frequently the case, that interview was not an examination, but rather an act of ventriloquism.

“There was a point ... [when] the CARES interviewer made a pretty critical mistake" in questioning the alleged victim, McKay pointed out. To be specific, the interviewer "actually put her words, used her own words to describe what the young woman was saying and from that point forward in the interview [the alleged victim] used the interviewer's words."

What this means is that there was no accuser: The investigator was telling a story, using the supposed victim as a prop. Testifying on behalf of Scott, forensic psychologist Philip Esplin criticized the CARES investigator for numerous violations of long-established interview protocols in child abuse cases. This was obvious, or should have been, to reasonably intelligent observers without specialized training.

“I remember watching [the recorded interview] and thinking, wow that's really, that's really incorrect," McKay told the detective. 

Prosecutor Justin Whatcott.

The timeline provided by prosecutors Justin D. Whatcott and Josh Taylor was also unable to withstand even modest scrutiny. The original narrative alleged that several episodes of molestation had taken place in a “trailer.” 

However, as McKay acknowledged, the defense was able to prove that the vehicle had been “crushed by snow” long before it could have been the scene of such hideous crimes.  Another alleged incident of abuse supposedly took place in the summer of 2004 in a house where Scott and Connie no longer lived. 

No physical evidence of assault rape was found during the initial physical examination of the child. The CARES nurse reported that the child's genitals appeared to display injuries "suggestive of blunt force penetrating trauma often seen in sexual abuse." That conclusion was dispelled by the results of a more detailed examination using a specialized instrument called a colposcope. Those findings were withheld by the prosecution, rather than being provided through discovery, as the law requires. The defense had to file a subpoena well into the trial in order to obtain the test results.

“I had no idea that there were photos of that examination,” prosecutor Whatcott told trial Judge George Carey on the penultimate day of the trial. During the previous day’s testimony, however, it was established that the photos had been subpoenaed “over a year ago.”

Testifying as a rebuttal witness for the defense, Dr. Edward Friedlander, chairman of the Department of Pathology at Kansas City University College of Osteopathic Medicine, said that the colposcopic images revealed the anatomy of a child who was a "perfectly intact virgin," rather than one who had been hideously violated as many as a dozen times. 

When he arrived in Idaho to testify, Dr. Friedlander later recalled in a letter to Idaho Attorney General Lawrence Wadsen, “I was first told that the photos [from the colposcopic exam] were not available, which would have been a breach of the standard of care for a practitioner. Then they appeared during the trial. I was allowed to examine the photographs of the child’s `injuries’ only about an hour before I testified…. As soon as I saw them, it was clear to me that the examining nurse had misinterpreted the findings.”

Stick to the facts: Dr. Friedlander.

One of the “lesions” described in the prosecution’s report “was the edge of a simple mound,” Dr. Friedlander elaborated. “The other was a fold that could have been revealed as such with a proper exam (i.e. a bit of water on a Q-tip). Despite the [claim that] she had been fully penetrated ten or twelve times over the course of one year, she was a fully intact virgin. Surely a jury of grown-ups would realize the absurdity.”

 “I should have been allowed to review the findings beforehand,” Dr. Friedlander continued. “Defense would then have obtained the services of an expert pediatric gynecologist” to confirm his findings. Following Scott’s conviction, Dr. Stephen R. Guertin, a pediatric specialist from Michigan, reviewed the colposcopic exam and concluded that the “victim” displayed “a normal shaped hymen” without “notches, clefts, tears, lacerations, scars, distortions” or any other signs of sexual abuse. 

The Brady violation committed by the prosecution offered sufficient grounds for a mistrial. Scott’s attorney, Ron Christian, didn’t move for one, and given Judge Carey’s deference toward the prosecution it’s likely that one wouldn’t have been granted. Stolidly indifferent to prosecutorial misconduct, Judge Carey was also determined to prevent the defense from impeaching the State’s case by demonstrating that the young child had been immersed in a horrible environment by her mother.

Testifying on behalf of the defense, the child’s aunt recalled that the mother tried to induce her “to testify that Scott molested me at 13 years [of age],” a charge she described as entirely untrue. This made an impact on at least some of the jurors. Five family members had offered depositions stating that the child’s mother “had exposed [her] to graphic sexual conduct,” including “openly having sex with multiple partners” in the presence of the young girl, “openly discussing and showing sex toys and pornography in front of [her], and openly disrobing in front of family members” in her presence.”

Judge Carey ruled that this evidence – which would explain why an 8-year-old child could have precocious knowledge of sexual behavior – was inadmissible.

Despite the judge’s efforts to skew the proceedings in favor of the prosecutor, there was abundant reasonable doubt regarding the charges against Scott. In fact, there was no reasonable basis to believe in his guilt. 

After examining the evidence, such as it was, offered by the prosecution, McKay concluded, “I couldn't say the State made their case."

Four members of the panel were convinced of Scott’s innocence. All jurors have the moral obligation to compel the State to prove its case, and as foreman of the jury McKay should have stood fast in defense of that principle. Instead, he engaged in a bout of collectivist self-criticism worthy of a penitent Communist Party cadre during Mao’s Cultural Revolution:

"I remember ... we had gone I think several hours in deliberation and a few of us were dug in [on behalf of acquittal] and the guilty people were adamant that he was guilty ... I was thinking, well, man, eight other people say that he's guilty so where am I, what am I missing here?"

All that he was “missing” was the moral ballast – or the dangling anatomy – necessary to do what his academic training and civic duty required: Build a coalition for acquittal, or hang the jury. He not only voted to convict a man he knew to be innocent, he persuaded at least three other jurors to shout down their conscience and do likewise. Perhaps he and the others rationalized that the mess they were leaving would be cleaned up on appeal. 

This decision wasn’t the product of lengthy, agonized debate and contemplation. The jury delivered its verdict in about five hours. Its haste was, at least in part, the product of another familiar prosecution trick: The jury was sent to deliberate late on a Friday afternoon, with the unappetizing prospect of coming in on Saturday, or reconvening on the following Monday. It’s likely that at least some jurors thought that consigning an innocent man to prison was a less horrifying prospect than the possibility of an abbreviated weekend. 

From the time the accusations first surfaced in June 2005, Scott had never been arrested. After the verdict was delivered, he was immediately remanded to the custody of the Ada County Jail. Several months later he was sentenced to twenty years in prison. 

Happier times: Scott harvests a Christmas tree.

Connie Molen contacted me about Scott’s case in July 2009; I published a report on it about three weeks later. Like many other people in comparable predicaments, Connie became a tireless activist and advocate on behalf of wrongfully convicted Idaho residents. She disseminated the piece published in this space as widely as possible and networked with families who were seeking post-conviction relief. 

The legal expenses incurred by Scott and Connie eventually cost them their home. In July 2011, the ordeal cost Connie her life. 

During a visit with Scott at the Idaho Correctional Center (ICC), Connie suddenly “grabbed her chest and turned white,” he recalls. He yelled at the guards for help, and when none came, he started digging through Connie’s pockets in search of the aspirin she carried with her in case of a heart attack. That attracted the attention of a guard, who jerked Scott away from his dying wife. 

Scott was ordered out of the room. After what seemed like an eternity he was told that Connie had died. A nurse who had offered to render aid to the stricken woman was prevented from doing so. The prison didn't call 911 for over an hour -- and the Life Flight didn't arrive until three hours after the crisis had begun.

“The sergeant who performed CPR on her for over an hour came to me after I was told she had died and, in front of several inmates, told me to get someone to investigate what had [gone] on here,” Scott related in a letter to Mike Murad, a reporter for Boise’s CBS affiliate. Scott’s efforts to find out what had happened to his wife were deflected for several weeks. Finally he filed a grievance demanding protesting the prison’s refusal to provide the information, only to be told that he couldn’t file a grievance “as it had been over 30 days.” 

“I [lived] in Garden Valley and a Life Flight can get there in 15 minutes,” Scott pointed out in his letter to Murad. “I’ll tell you why Connie’s life was low priority to ICC staff, especially ICC medical. She had just exposed [the] ICC doctor and medical director on her website.”

“Connie was my angel,” Scott told me during our recent meeting, his eyes moistening and a melancholy smile tugging at the corners of his mouth. “I wasn’t a good person when I met her, and she understood that. She was patient with me – a saint. She helped me get over problems I had with substance abuse, taught me to take care of my health, and helped me learn what was truly important in life. She literally fought to the last breath for me.”

The same couldn’t be said for Scott’s trial attorney, Ron Christian, who – like too many trial attorneys – succumbed to alcoholism.

“Rather than meet and prepare with experts, interview critical witnesses, or follow up with unresolved motions … and unanswered subpoena duces tecums, Mr. Christian drank,” recounts the motion for post-conviction relief filed by Scott’s new attorney. “[Christian] never adequately investigated or prepared Mr. Molen’s case for trial.”

At the first trial setting, “Mr. Christian appeared for trial intoxicated and was unable to proceed,” continues the motion.  After being admitted for in-patient treatment, Christian eventually moved in with Scott and Connie. They took him to AA meetings but still found “empty bourbon and vodka bottles hidden in the bathroom and other cupboards of the house. During the trial he was more attentive to his drinking habits than to his duties in reviewing evidence and preparing witnesses.

The motion for post-conviction relief was stipulated to by the new prosecutor assigned to the case. At first impression this appears to be a species of miracle, given that the document contains a detailed and extensive discussion of Whatcott’s misconduct. However, the appellate judge confined his ruling to Christian’s ineffective representation, insisting that it wasn’t necessary to examine the prosecutor’s role in the travesty.

“He wouldn’t rule on the withheld evidence – there was too much potential liability,” Scott told me.  He has also been informed that a lawsuit against CARES and St. Luke’s Hospital isn’t possible because “the statute of limitations expired while I was in prison.”

Apart from the story told by – actually, told through – the accuser, no evidence was ever presented that Scott had committed an act of sexual abuse. The same cannot be said of the case against Julie McCormick, former head of security at the Idaho Department of Juvenile Corrections (IDJC), who sexually abused a 15-year-old boy who was an inmate under her supervision. 

 McCormick was assigned to her position despite having no academic or professional qualifications. She systematically exploited the vulnerable boy, who was on psychiatric medications. The facility’s management was aware of what was happening. Rather than intervening to protect the victim, the IDJC forced staff members who knew of the abuse to sign a confidentiality agreement, and then sought to have all of the relevant records sealed.

 

Following her guilty plea, McCormick was the recipient of exemplary punishment. That is to say, she was used as an example of the extravagant leniency the State bestows on offenders who have served its punitive apparatus. Like Scott, Ms. McCormick was sentenced to 20 years in prison. However, Judge Bradly S. Ford – the same Canyon County gavel-fondler who presided over the Soviet-grade drug possession trial of David Conner, as recently reported in this space – retained jurisdiction over McCormick’s case. After serving less than a year, she was released from prison and her sentence was revised to 10 years of supervised probation.  

 

Scott Molen, February 5, 2015.

Scott is deeply aware of the entrenched corruption of the system that stole seven years from his life. He is continuing to seek redress for the irrecoverable losses inflicted on him – but he is much more eager to enjoy the life that has been restored to him

Understandably anxious to stay out of Idaho, Scott is now living close to his father in a neighboring state. He also enjoys the splendid company of an irrepressibly friendly 18-month-old Red Nose Pitbull named Jax, who accompanied him during a brief visit to Payette. Although I had corresponded with Scott and spoken with him by telephone, until our lunch appointment on February 5  I hadn’t been able to meet him face to face: My application to visit him in prison was denied because I was designated a “security risk.” 

Scott displayed none of the bitterness to which he is entitled, and radiated genuine joy as he experienced the simple decencies he and been denied as a wrongfully convicted man. For all that the State and its agents have done to his family, Scott has not surrendered to hate – and that victory cannot be stolen from him.

(This essay has been updated to correct some details.)


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