Having a Wonderful Adventure from Somewhere on the Road

September 7, 2014

Sunday, September 7, 2014

Good morning:

Crane-Station and I were hacked rendering our computers inoperable. Our place was burglarized, our property vandalized and stolen. Our bank account was breached and money stolen.

Our lives were threatened.

We left Kentucky in a hurry to avoid a worse fate.

This problem began when someone burglarized our home and obtained the access code to our AT&T router, which wasn’t difficult to do since it was printed on the side.

Our apartment was trashed.

Then both of our computers were hacked. Our administrator privileges were usurped, our passwords were altered, and we could no longer log-in to our computers.

I was able to reset and restore my computer to the state it was in when I purchased it, but Crane ended up in the same place unable to log-in after she reset hers.

My computer now appears to be operating normally with assistance from HP Tech Support.

Looks like we offended some people.


Grand Jury Basics, as Ferguson Waits for a Decision

November 20, 2014

by Crane-Station/cross posted at Firedoglake

 

In the United States, a person cannot be prosecuted for a felony unless there is probable cause to believe that a person has committed a felony. Pursuant to the Fifth Amendment, all federal felony prosecutions must be by grand jury indictment, unless the defendant waives his right to be prosecuted by indictment and agrees to be prosecuted by information.

This means federal prosecutors present their cases to a grand jury together with the indictment and ask the grand jury to review and approve the indictment. However, this requirement is not binding on the states. The states have the option to either file by information in order to charge someone with a felony, or a prosecutor can go to a grand jury to get the indictment. Missouri is one of these states. The key legal matter is that there has to be probable cause to believe that a crime occurred, and someone other than the prosecutor- either a judge or a grand jury- has to decide.

The interesting issue in this case is why the prosecutor decided to go to the grand jury, as opposed to charging Darren Wilson by information. The likely reason that the prosecutor did not file by information is that it would have potentially been a job killer. If he charged Wilson with murder, the police would have turned against him, but the citizens of Ferguson and their supporters would have and were turning against him because he did not. To extricate himself from the dilemma, he took the case to the grand jury. That said, here are some of the characteristics of the grand jury:

Who is in a grand jury room?
-There are 12 members in the Ferguson grand jury. These twelve members were summoned in by the clerk of the court.
-They serve a term, where maybe they meet once a week, but they don’t meet every day.
-They choose a foreperson.
- Only the members of the grand jury, the court reporter and a prosecutor are allowed in the room, along with the witness, which is usually the arresting officer.
-Sometimes they bring other witnesses. All witnesses testify under oath.
-No judge is present in the grand jury room.
-No defense attorney is present in the room.
-The grand jurors are sworn to secrecy.

Are they sequestered? Is there a selection process, ie, voir dire?
-It would be impractical to sequester a grand jury because of the length of the term they serve, so they come and go during their term of service. This may be once a week or even once a month. Grand jurors are not sequestered.
-There is no voir dire with grand jury selection, so grand jurors do not have to disclose their opinions about various issues.
-There is no one to strike a grand juror from the panel, so grand jurors are not “stricken for cause.”

What is a true bill and what is a no bill?
-The grand jury can issue a “true bill,” which is an indictment. The defendant then pleads guilty or not guilty.
-The grand jury can issue a “no true bill”, which means the grand jury did not find enough evidence to establish probable cause, to move the case forward for prosecution.
-The grand juries sometimes write reports about what they have investigated, for instance, systematic problems in the justice system.
-It takes nine votes to indict in Missouri; the vote does not have to be unanimous, for a true bill.
-The foreperson of the grand jury signs and returns, or hands down the indictment, which is filed in the Court Clerk’s Office. Grand juries rarely ever refuse to indict.

What are the possibilities for charges that Officer Wilson could face in Ferguson?
-First-degree murder for the killing of Michael Brown.
-Second-degree murder.
-Voluntary manslaughter.
-Involuntary manslaughter.
-No charges.

Do grand jurors decide if someone is guilty of committing a crime?
-No. Unlike trial jurors, the grand jury decides whether there is probable cause that a crime was committed. They do not to decide guilt.
-The rules of evidence do not apply and hearsay is admissible. That means that prosecutors can ask leading questions.
-Grand jurors are not to disclose evidence that they hear, and there is a penalty if they do.

It is notable that Darren Wilson, who is the target of the investigation, testified before this grand jury without invoking his constitutional right to remain silent, and without any agreement that involved immunity from prosecution in exchange for his testimony. A person would have to be insane to testify in this situation, and no lawyer would advise someone to do that, unless he had assurances from that prosecutor, that the prosecutor was on his side. That is the fly in this ointment- that Darren Wilson testified before the grand jury rather than invoking his constitutional right to remain silent.

It doesn’t take a weatherman to figure out which way the wind is blowing.

What journalists covering Ferguson need to know about grand juries


Defense of #Ferguson grand jury as a crucible for truth fails straight-face test

November 18, 2014

Tuesday, November 18, 2014

Good morning:

Paul Callan, a former prosecutor, ironically calls for sanity in his article at the Daily Beast yesterday titled, There’s No Conspiracy in Ferguson’s Secret Jury. I say ‘ironically’ because his argument is based on the fundamental Sixth Amendment rights of an accused to be represented by conflict-free counsel who cross examines prosecution witnesses in a public trial, not a secret grand jury proceeding.

As he well knows, the target of the grand jury investigation is Officer Darren Wilson. Neither Wilson nor his lawyer have a right to be present when the grand jury hears evidence about his case. They have no right to know who the witnesses are or what they say and there is no right to cross examine. There is no judge and the rules of evidence do not apply. The prosecutor decides what the charge or charges should be and he controls what evidence the grand jury gets to hear. He can introduce evidence that would not be admissible in court, such as hearsay or inadmissible civilian and expert opinions. He has no obligation to present exculpatory evidence. For all of these reasons, grand juries have been called star-chamber proceedings. Critics are only half-kidding when they say that a prosecutor can persuade a grand jury to indict a ham sandwich.

The flaw in Callan’s argument is that he assumes that the prosecutor will play the traditional role of defense counsel in a public trial to aggressively, thoroughly and effectively expose the truth in the crucible of cross examination. That assumption is false because a prosecutor’s job is to represent the people by obtaining an indictment to prosecute the defendant, not defend him. If, as in this case, the prosecutor has close ties to police — his father was a white police officer who was killed by a black male and he has a history of sympathy for white cops and antipathy for black defendants — there is a reasonable and legitimate concern that he has a conflict of interest.

The unstated premise in Callan’s call for ‘sanity’ is no one should worry about the outcome of the grand jury because the prosecutor is going to play the role normally entrusted to an aggressive, thorough and effective defense lawyer using cross examination to expose the black eyewitnesses for the ‘liars’ that they are.

The grand jury’s job is limited to deciding if probable cause exists to believe Darren Wilson murdered an unarmed Michael Brown. The answer is “Yes,” and we have known that since August 9th, a few hours after the shooting.

Whether he is guilty or not guilty should be determined by a jury after a full and fair public trial presided over by a judge who correctly applies the rules of evidence.

Read this excerpt from Callan’s call for sanity and let us know what you think.

In a high-profile matter like the Brown case, the prospect of a witness getting his or her name and image in the newspaper or on TV by embellishing the story is for some an irresistible temptation. Repeating an embellished story before a grand jury while under oath is an entirely different matter. The grand jury inquiry affords opportunity to test accuracy of witness accounts. If the witness did in fact witness such a terrible crime, the testimony will survive in the crucible of cross-examination. If true, it will have a discernable [sic] consistency with the forensic evidence. Was the witness really in the time and place to have made the claimed observations? Was the suspect raising his hands in a surrender gesture or could the arm placement have been viewed from a different angle as an aggressive “tackle” gesture? How close was Michael Brown to Officer Wilson when he turned in Wilson’s direction? How much time did the officer have to react? Do the varied autopsy reports support or contradict witness testimony? Did Michael Brown have a motive to violently attack the officer?

Experienced prosecutors can recount case after case of witnesses recanting or altering colorful public statements under cross-examination. Witnesses also make unintentional errors sometimes based on what they have heard from others. Once again focused inquiry by the prosecutor and even the grand jurors who have the right to ask their own questions, can clarify ambiguous or inaccurate points.

By the way, I happen to know a lot about grand jury practice and procedure because I have represented many clients who were targets, subjects or witnesses during my 30-year career as a felony criminal defense lawyer.

To say that a grand jury is an ideal way to discover the truth does not pass the straight-face test because it cannot be said without laughing.


Darren Wilson’s radio calls do not support a claim of self-defense

November 17, 2014

Monday, November 17, 2014

Good morning:

Officer Darren Wilson of the Ferguson Police Department shot and killed an unarmed Michael Brown on August 9, 2014 sometime between 12:02 pm, when he told dispatch, “Put me on Canfield with two. [an apparent reference to stopping Michael Brown and Dorian Johnson] And send me another car,” and 12:03 pm when someone posted a tweet about the shooting.

His radio calls do not support his claim of self-defense.

According to a timeline in the St.Louis Dispatch,

11:53 am

Police dispatcher reports a “stealing in progress” at the Ferguson Market.

11:53:19 am

Dispatcher reports that the suspect stole a box of Swisher cigars and describes him as a black male wearing a white T-shirt running toward QuikTrip.

11:57 pm

The dispatcher reports that the suspect is wearing a red Cardinals hat, a white T-shirt, yellow socks and khaki shorts, and is accompanied by another man.

12:00 pm

Wilson reports that he’s back in service from the sick-baby call. He then asks the officers searching for the thieves – units 25 and 22 – if they need him.

12:00:07 pm

An unidentified officer broadcasts that the suspects had disappeared.

12:02 pm

Wilson says, “21. Put me on Canfield with two. And send me another car.”

Sources have told the Post-Dispatch that Wilson has told authorities that before the radio call he had stopped to tell Brown and his friend, Dorian Johnson, 22, to quit walking down the middle of the street. They kept walking, and he then realized that Brown matched the description of the suspect in the stealing call.

12:02:41 pm

Unit 25 reports that he is about to arrive at Wilson’s location, saying he is “going out on Canfield” and accompanied by the sound of his racing engine.

12:02:48 pm

Unit 22 reports that he has arrived at the scene.

12:23 pm

Someone tweets about the shooting.

My Observations

1) The 911 caller reported a theft of a box of Swisher cigars, which is a misdemeanor shoplift, not a robbery.

2) Wilson’s statement to the dispatcher, “Put me on Canfield with two. And send me another car,” does not indicate why he stopped the two people. For example, he may have intended to issue them citations for jaywalking and he may have called for backup as a precaution because the two boys had disobeyed him. His post-shooting explanation (i.e., that he realized Brown matched the description of the suspect in the stealing call after they ignored his order to get out of the middle of the street) may or may not be true. I suspect he lied about that because he did not fill out an offense report explaining why he decided to stop them and the police chief publicly stated that Wilson did not know they were the two suspects.

3) Wilson shot and killed Brown sometime between 12:02 pm, when he asked for backup, and 12:03 pm, when someone tweeted about the shooting. I suspect it happened before 12:02:41, when the officer in vehicle 25 reported that he was going on Canfield and 12:02:48, when the officer in vehicle 22 reported that he had arrived at the scene and was out of his vehicle. Apparently, neither officer witnessed the shooting, so I am inferring that it happened before they arrived.

4) I am not convinced that Wilson suffered any injuries during his encounter with Brown. If so, they are not apparent in the videos from the police station.

5) I believe the most likely explanation for what happened is Wilson backed-up, stopped and pushed his door open intending to get out and confront the two boys. The door hit both boys and Brown pushed it back hitting Wilson in the head as he was attempting to get out. Wilson lost his temper and reached through the open window with his left hand grabbing and holding on to Brown’s arm as he drew his gun with his right hand and pointed it toward Brown. Brown attempted to prevent Wilson from shooting him but was unsuccessful as one of the two shots injured his right hand. This explanation is consistent with Dorian Johnson’s description of what happened and also consistent with the autopsy report and the presence of gunshot residue on Brown’s right hand.

6) Brown broke free from Wilson’s grip and ran away to avoid being shot a second time. Dorian Johnson also ran.

7) Wilson gave chase squeezing off shots at Brown.

8) Brown realized he was not going to get away, so he stopped, turned around and was raising his hands as he dropped to his knees to surrender.

9) Wilson kept shooting and finished him off as Brown was leaning forward looking at the ground as he dropped to his knees. This version is consistent with Brown’s injuries.

10) Brown’s body was about 100 feet from Wilson’s vehicle, which makes it extremely unlikely that he bull-rushed Wilson.

11) Finally, I do not believe a person who literally ran for his life after having been shot, would suddenly stop fleeing, turn around and bull-rush the shooter.

As I have said many times, there is probable cause to believe that Wilson intentionally shot and killed Brown in the heat of anger.

Wilson should be indicted and tried for murder.

Brown’s family and the people who live in Ferguson deserve no less.


Don Blankenship indicted for causing the deaths of 29 coal miners

November 16, 2014

Sunday, November 16, 2014

Good morning:

Good news! Just when we thought the rich were immune from prosecution for killing people, a federal grand jury in West Virginia has indicted Don Blankenship, the former president and CEO of Massey Energy, for causing the deaths of 29 coal miners by placing profits ahead of safety.

The West Virginia Metro News reports.

The 43-page four-count federal indictment of former Massey Energy president and CEO Don Blankenship portrays an operator obsessive about upping production at the cheapest cost. Federal prosecutors allege it was an attitude that led to the deadly explosion at the Upper Big Branch mine in Raleigh County that killed 29 miners.

The indictment, announced Thursday by U.S. Attorney Booth Goodwin, alleges Blankenship knew about UBB’s safety problems and the practice of alerting supervisors underground when federal mine inspectors arrived at UBB for inspections. It’s also alleged he lied to the U.S. Securities Exchange Commission about mine safety in the days after the April 5, 2010 explosion in an attempt to help Massey’s stock price.

Blankenship was charged with conspiracy to violate mandatory federal mine safety and health standards, conspiracy to impede federal mine safety officials, making false statements to the United States Securities and Exchange Commission and securities fraud….

The indictment alleges Blankenship was driven by the numbers and in doing so ignored dozens of safety violations at UBB and covered up others. Federal prosecutors said from April 3, 2009, to April 5, 2010, Blankenship received 249 daily safety violation reports from the UBB mines but did very little to correct the problems.


Mark Karlin, Editor of Buzzflash at Truthout, writes
,

Blankenship is a nasty piece of work, even in the pitiless exploitative business of coal mining, but his outlook on profits before lives is not uncommon in the extraction industry and in corporations in general. Now, in the global “free trade” economy, companies are exporting that indifference to the primacy of life to sweat shop labor in nations such as Bangladesh (textiles) and China (hi-technology).

No one can bring back the lives of 29 miners who worked in grimy unsafe conditions, but the indictment is, for a moment, a glint of justice flashing through the overcast clouds of immunity for corporate outlaws.

Go here to read the indictment.

We need a lot more prosecutions like this one.


My experience applying to ACA in Texas

November 15, 2014

by Crane-Station

Open enrollment for obtaining affordable health insurance to take effect in 2015 begins today. Even though I have an undergraduate degree in Biology and an associates degree in a medical field, as well as a reasonable grasp of reading and writing, my attempts to navigate previous versions of ACA enrollment websites proved futile. Knowing that the government website was problematic in the beginning, and being directed to return on November 15, I was eager to get an early start this morning, to review my options, and sign up for affordable health care at the earliest opportunity.

It is not meant to be. If you can conjure in your mind the most egregious exploitation of the poor in exchange for no medical benefit whatsoever, it might just be the Affordable Health Care Act, which is not affordable nor is it health care, at least in Texas. Because I am too poor to qualify for tax credits, and since Texas has declined to expand Medicaid, my entire health insurance coverage can be summed as follows: using an exemption code printed in the Eligibility Notice, I won’t have to pay a fine to the government, in April, at tax time. My eligibility notice states:

You recently submitted an application to the Health Insurance Marketplace. We reviewed your application to see if you can get health coverage through the Marketplace and help paying for coverage and health services.

/snip/

Based on the information you provided, the new federal health care law provides that you could be eligible for free or low cost health care through Medicaid. However, the state of TX has chosen not to offer you this new health care coverage at this time.

You are not required to pay a penalty for not having health insurance because of your income and because the state of TX declined to expand Medicaid to cover individuals in your situation.

Your household’s yearly income is too low for a tax credit. Generally, individuals and families whose household income for the year is between 100 percent and 400 percent of the federal poverty line for their family size may be eligible for the tax credit.

• You don’t qualify for Medicaid or the Children’s Health Insurance Program (CHIP) in your state.

Since our yearly income is too low for a tax credit, I was anxious to locate an affordable plan, for purchase. I reasoned that there might be coverage available that would be affordable, in case of a catastrophic event, in the least. My husband and I could figure the cost for purchasing the plan into a new monthly budget that we are working on, given our recent move to Texas. After completing my application, the healthcare.gov site directed me to an available 33 plans for purchase. Not one plan is affordable. In fact, some of the plans exceed or nearly exceed our monthly income. The lowest-cost plan available calls for nearly half of our monthly income, just for the premium. The deductible is roughly equivalent to one-half of our yearly income. Were I to schedule, for example, a monthly visit to a regular doctor, I would still have to pay cash for every single visit, without even coming close to meeting the deductible. Here is an example, taken directly from the list of choices in my application this morning:

Catastrophic
Covers less than 60% of the total average costs of care: $612.62/month
Deductible $6,600 Out–of–pocket maximum $6,600

Copayments / Coinsurance $40 Primary doctor
No Charge After Deductible Specialist doctor
No Charge After Deductible Generic prescription

If I get sick, and I have the ‘catastrophic’ plan, which I cannot afford to have, I will have to pay $612.62 plus $40 plus $6000, in order to receive one single generic antibiotic tablet, let alone receive any care for a real catastrophe. At the other end of the spectrum, the best plan available, there is this:

Health care costs
Plan covers 80% of total average cost of care

Yearly premium
$12,559.56

This yearly premium is only slightly less than our yearly income, and it does not provide full coverage. In addition, the list of medications that are covered in this best-case scenario, is limited. When I called the 800-number and spoke to a representative this morning, I asked what I should do, to prepare for the possibility of a catastrophic event, such as an accident or severe illness. She told me that I could go to a local clinic and apply for a card, so that in the event of an accident, I can present the card, and maybe qualify to be taken to a local health clinic (not a hospital), but even this is not guaranteed.

When we first moved here, I stopped by an office to inquire about low-income options for health insurance such as Medicaid, but I do not qualify. Entry-level jobs that I have applied for do not offer benefits, and the wages are too low to be able to purchase even the least expensive, catastrophic plan.

I am ineligible to qualify for Medicaid, but too poor to purchase health insurance, because Texas refused the billions of dollars it was offered, in federal subsidies. Not only that, but if it weren’t for filling out an application this morning and receiving an exemption code, I would be fined for not signing up for unaffordable government health insurance, that provides no benefits.

The human cost of Texas’ refusal to expand Medicaid


We need a law establishing a uniform reporting requirement for police killings

November 14, 2014

Friday, November 14, 2914

Good morning:

We need a law that establishes a mandatory uniform classification and reporting requirement for all police killings.

They have increased each of the past three years. The FBI’s Uniform Crime Report for 2013 listed 461 justifiable killings of felony suspects by police. That is the highest number of killings in the past 20 years.

Inspired in part by the Michael Brown killing, USA Today reviewed the FBI’s database of justifiable killings for the past seven years involving a white cop killing a black suspect. They found an average of 96 killings per year.

Whether those killings were truly justifiable or falsely deemed to have been justifiable due to racist thinking and/or to cover-up a murder is impossible to determine due to incomplete record keeping. For example, I was shocked to discover that no law requires the creation and maintenance of a national database of police killings and no law requires police agencies to report killings according to a uniform procedure. Instead, the FBI relies on agencies to voluntarily report their self-described ‘justifiable’ killings.

This situation is intolerable and must be fixed. Congress is going to have to pass a law establishing a uniform classification and reporting system.

We also need a law that establishes independent civilian review boards to investigate and transparently review police killings because police investigating fellow officers is an inherent conflict of interest that cannot reasonably be expected to produce a just result.

Unfortunately, I cannot imagine an evidence averse Republican Congress passing such a law even though it’s desperately needed.


Grand Jury decision in Michael Brown shooting will be illegitimate

November 13, 2014

Thursday, November 13, 2013

Good morning:

St.Louis County prosecuting attorney Bob McCulloch, aided and abetted by a compliant news media, is intentionally violating the public’s First Amendment right to know whether Officer Darren Wilson killed Michael Brown in self-defense or murdered him.

Since August 9th when Michael Brown died in the street and six eyewitnesses said he had his hands up when he was shot, there has been probable cause to believe the officer murdered him.

In essence, he is defending the officer and concealing what he is doing by trying Michael Brown in a secret grand jury proceeding where he controls what they get to consider while his minions selectively leak evidence that is spun in a manner favorable to the officer.

For example, Mother Jones reports today,

The autopsy, which was leaked to the St. Louis Post-Dispatch, revealed Brown had been shot in the hand at close range with Wilson, putting into question whether Brown had had his hands up in the air, as some witnesses claimed.

(emphasis added)

The italicized portion of the statement is false. Dorian Johnson, who was with Brown, stated that Brown received a gunshot wound to his hand fired at close range inside the vehicle while the officer was seated holding Brown with one hand and a gun with other. Johnson’s statement is consistent with the gunshot residue found on Brown’s hand and the bullet wound described in the autopsy report.

The wound to Brown’s hand and the presence of the gunshot residue does not make it more or less likely that Brown’s hands were up when the officer shot and killed him after getting out of his vehicle and chasing Brown down the street recklessly squeezing off shots in a crowded residential neighborhood. To suggest otherwise is at best grossly irresponsible.

Let’s return to basics.

The purpose of the grand jury is not to try this case. The purpose is to decide in secret whether there is probable cause to believe that Wilson murdered Brown. If so, the grand jury should indict him for murder. If indicted, the Sixth Amendment would come into play.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

(emphasis supplied)

Last week the Arizona Court of Appeals reminded Maricopa County Superior Court Judge Sherry Stephens about the importance of public trials in the Jodi Arias case, such that despite the defense request to exclude the media and the public from the courtroom, the public has an overriding First Amendment right to know what is going on in her resentencing hearing. That is, the public and the media cannot be excluded.

The public’s right to know what is happening at any given time and what the government is doing is protected by the Freedom of the Press Clause in the First Amendment.

Secret trials are prohibited by the First and Sixth Amendments. Yet, that is exactly what is happening in St.Louis and the news media is aiding and abetting that secret proceeding.

Since the prosecutor determines what evidence to present to the grand jury, the grand jury proceedings are secret, no judge is present, and the rules of evidence do not apply, we do not know what evidence has been presented or the quality of that evidence.

Only a fool would believe the grand jury is getting an objective look at the evidence, given the selective leaks by ‘unnamed officials’ that only favor the officer.

The prosecuting attorney, who has taken an oath to uphold and enforce the law, has violated the public’s right, which is our right to know what is going on.

There is no way that a secret grand jury proceeding can ever substitute for a public trial, ever.

The grand jury’s decision will be illegitimate and not entitled to any deference or respect.


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