We must end racism to obtain justice in our courts

February 28, 2014

Friday, February 28, 2014

Good afternoon:

Never forget that the battle for justice started long before the pyramids were built and it will continue as long as we humans continue to exist.

To get a sense of how far we have come and how much we have accomplished, let’s take a brief review of how the law has changed since our Founding Fathers declared their independence from England, fought and won our independence and wrote our constitution.

The Declaration of Independence, the United States Constitution and the Bill of Rights are extraordinary documents that we should treasure, respect and protect.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Purchased in sweat and blood over many centuries and honed during the enlightenment, this sentence is a startling, radical and revolutionary rejection (1) of the divine right of kings to govern without the consent of the governed and (2) the rich aristocracy that owned most of the wealth and real estate not owned by the king. With the exception of the Church of England and a merchant class that grew wealthy and powerful during the industrial revolution, no one else had any civil rights, wealth or political power. No justice existed for them and with few exceptions, none of them expected any justice.

The merchant class, by the way, created the Liberal Party in England to advocate for their economic and political agenda, which was freedom to trade with whomever they pleased without oversight by officials of the Crown. Using The Wealth of Nations by Adam Smith as their bible, they claimed that the invisible hand of greed was the only appropriate form of regulation. In making that argument, they conveniently ignoring that Adam Smith had cautioned that some government regulation would be necessary to control runaway greed.

Smith was right because one of the atrocious activities that some members of the merchant class engaged in was shipping boatloads of African slaves to the southern states where they were sold at auction to wealthy plantation owners who used them to till the soil, harvest their crops, clean and maintain their homes and also wash their clothes. Some of them also abused the pretty females and handsome males sexually whenever they wanted.

Slaves were slaves for life and the owner had the right to discipline them in any manner, including the right to torture and kill them without having to explain why they did it or face any consequence.

The merchant class proved many times over from the late 18th century until President Franklin Roosevelt finally called an end to their reign of terror. that greed and unregulated capitalism are incredibly destructive.

The neoliberals of today are the wealthiest 1% of our population. They seek to enrich themselves at the expense of everyone else by turning back the clock to the 19th century and they are pitching their thoroughly discredited ideas in an attempt to convince we the people whom they plan to exploit that it is in our best interests to support their agenda and vote for their candidates because our fortunes will improve as the additional money and wealth they accumulate at our expense will eventually trickle back down to us.

In other words, a rising tide raises all ships.

The Founding Fathers taught us how to respond,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The term “all men” necessarily includes the 1% and they have no right to exploit us for their fun and profit.

The criminal justice system will work only as well as the people who participate in it.

Justice is an idea, not a commodity for sale to the highest bidder. Justice cannot happen in the presence of racism, special interests and corruption. Without honesty, and diligent effort in good faith by all participants, justice cannot happen. The criminal justice system cannot produce just results when jurors, lawyers, judges, police, forensic experts and witnesses with hidden agendas attempt to rig the outcome.

We have witnessed the tragic results of racist thinking by white people who believe that all black male teenagers are dangerous.

We have seen them deny that they are racist.

Yet we know that the same white people who believed that Trayvon Martin and Jordan Davis were dangerous would not believe that two white boys the same age were dangerous.

Events have a way of focusing our attention on problems that need fixing. Viewed with detachment from afar, which is what we must do to get an objective diagnosis of what ails our criminal justice system, it should be clear to everyone with eyes to see that we are not living in a post-racial society.

We absolutely must tackle this problem head on and so discredit racism that people come to regard it as an evil delusion that is not supported by any evidence.

Rather than feel dispirited and depressed, we should realize that we are being called by these events to do all that we can to correct a terrible wrong.

Yes, we live in trying times with injustice and death all around us. We would like to walk away, but those who have been called know in their hearts and minds that they cannot walk away and pretend that reality does not exist.

We have limited time and unfinished business to resolve.
Fortunately, we have each other to rely on.

We are many and they are few.

events are propelling us to take action

Racism needs to end and until it does no one should expect the criminal justice system to produce just results.


Prosecution adds new aggravated rape charge in Philip Chism case

February 27, 2014

Thursday, February 27, 2014

Good morning:

Time to update readers on the Philip Chism case in Massachusetts. He is the 14-year-old boy charged with raping, robbing and killing his 8th grade math teacher, Colleen Ritzer.

First, a word of caution. The article discusses graphic and potentially disturbing acts.

A new charge of aggravated rape was added last month, so he now faces two rape charges.

The first charge was based on a stick or tree limb that police found inserted into her vagina when they found her body in the woods next to the school.

I suspect the second charge is based on an STR/DNA test result that detected the presence of spermatozoa that yielded a complete profile matching his known profile. Such a result would warrant two separate rape charges and the delay in charging the second count may have been due to a delay in processing the evidence at the crime lab.

To review the STR/DNA testing procedure, read my recent article about the Craig Michael Wood case, How DNA testing will be used in the case against Craig Michael Wood.

I have been somewhat perplexed by the original rape charge involving the tree limb because I have been assuming it was was inserted in the woods post mortem (i.e., after she died). If that were so, the appropriate charge would be abuse of a corpse.

I have to assume, however, that the prosecution knows the difference between the two charges, so I think they believe they can prove that he inserted the limb, which I also have read described as a stick, in the bathroom before he slashed her throat.

This new rape charge probably preceded that act and may not have involved penetration of her vagina.

The defense is attempting to sever the new rape charge to keep it in juvenile court. Unless he pleads guilty, he will be tried in adult court on the original three charges.

I do not believe his lawyers will succeed in preventing the juvenile court from declining jurisdiction and transferring the new rape charge to adult court.

The Daily Mail, which tends to highlight the lurid aspect of violent crimes, is reporting that investigators in Clarksville, TN, where Chism lived with his mother before they moved to Massachusetts last fall, are investigating a rumor that he tortured cats and set them on fire.

Since motive is not an element of the charges against him, the prosecution could not introduce that evidence at trial, assuming it exists.

It might, however, be admissible at a sentencing hearing.

Finally, the Boston Herald is reporting today that Cellebrite has completed its effort to recover video and photographs stored on Chism’s smashed cell phone that police recovered in the woods near Ritzer’s body.

The Boston Herald states,

What if any disturbing evidence investigators recovered from accused teen killer Philip Chism’s smashed Samsung smartphone to bolster their charges he raped and murdered Danvers High math teacher Colleen Ritzer — and possibly memorialized the horror in pictures — may not be disclosed until the case goes to trial.

The results of that testing have been filed under seal.

I doubt they would have filed the results under seal, if Cellebrite did not find anything.


Could the prosecution’s case against Craig Wood be derailed by a warrantless search?

February 26, 2014

Wednesday, February 26, 2014

Good Afternoon:

I recently commented in response to a question raised by Betty-Kath regarding the warrantless entry into Craig Wood’s house by the police to search for Hailey Owens and their use of information, which they acquired during that search, to obtain a warrant to search his house for evidence that he had kidnapped and detained her in his home.

I said I did not believe the warrantless entry would affect the outcome of the case.

I reconsider my answer today and explain why the warrantless entry could jeopardize the prosecution’s case.

Detective Neal McAmis referred to the warrantless entry into Wood’s residence in his affidavit attached to the complaint:

Officers did a safety sweep of the residence to search for Owens. When the officers got to the basement steps, they could smell a strong odor of bleach. The odor continued as they entered the basement. The officers informed me the basement floor was wet. They also said they saw bottles of bleach in the basement.

On 02/19/14, at 0128 Detective Barb obtained a signed search warrant to search Craig’s residence. Several crime scene technicians responded to the scene. In the basement the crime scene technicians located two plastic storage totes. They were stacked one on top of the other. There were papers and documents in the top tote. In the bottom tote was what appeared to be the body of a small child. The body was concealed inside two trash bags. The crime scene technicians removed the trash bags and confirmed it was the body of Owens.

(emphasis supplied)

Detective Barb also applied for a second search warrant of the residence a little over 12 hours later during the afternoon of February 19th. In that affidavit, he described what he found during the search earlier that day, including firearms, video cameras, a computer, digital storage media, child pornography, cleaning fluids, journals and bedding, and he requested a search warrant authorizing him to search for and seize those items.

He did not mention the earlier warrantless search.

The issues the court may have to consider before this case goes to trial are whether the initial warrantless safety sweep of the residence was unlawful and, assuming for the sake of argument that it was, the second issue is whether any information obtained during that search was used to obtain a subsequent search warrant.

If so, that may invalidate the search and result in the suppression of the evidence seized. Without that evidence, the prosecution might not be able to convict Wood.

The general rules:

(1) A search of a residence without a warrant is unlawful unless an occupant voluntarily consents to the search or exigent circumstances exist that would make it impractical and unreasonable to obtain a search warrant, such as an entry in hot pursuit of a fleeing suspect (see United States v. Santana, 427 US 38 (1976)), an entry to prevent the destruction of evidence (see Kentucky v. King, 131 S.Ct. 1849 (2011)) or an entry to prevent someone from suffering imminent injury or death.

(2) The police cannot use “fruit from the poisonous tree” (i.e., information obtained unlawfully) to establish probable cause (i.e., reasonable grounds) to believe that a residence contains evidence of a crime.

Consent, hot pursuit and preventing the destruction of evidence are not applicable.

Thus, the question the court will have to resolve is whether the warrantless entry was reasonably necessary to prevent someone from suffering imminent injury or death.

The problem for the prosecution is that the police arrived at the residence before Wood arrived. They were waiting for him and when he arrived, they pulled into his driveway and parked behind him, preventing him from backing out. They took him into custody and transported him to the station house for interrogation.

The warrantless entry into his residence took place after Wood was removed from the scene.

With their only suspect in custody and no particular reason to believe that Hailey Owens was in the residence and in any immediate danger, if she was, I am not seeing any evidence that would justify a warrantless entry into his residence to prevent her from suffering imminent injury or death. Absent probable cause to believe that, the warrantless entry would be unlawful and any evidence seized as a result of it would not be admissible.

I also do not see them acting as though they believed she was endangered in the house. Moreover, the absence of any reference to the warrantless entry in the second affidavit for search warrant appears to have been a deliberate omission that the defense probably will interpret as deliberate.

The prosecution may be able to navigate its way through this potential disaster, if it can satisfy the court that (1) no information obtained during the warrantless entry was relied on to obtain a search warrant, or if they did rely on it, they relied on other independent evidence with which to establish probable cause, such that they would have discovered the evidence they seized even if the information obtained during the warrantless search were excised from the affidavit for the first search warrant that was issued at 0128 on February 19th.

How this potential issue is resolved may determine the outcome of this case.


The Oil Train Boom. Literally.

February 26, 2014

by Crane-Station

Westbound oil train, Essex MT
Image by Roy Luck, Creative Commons, flickr: Westbound oil train, Essex MT

The ‘shale revolution’ is here, along with an astonishing increase in rail carloads of crude oil in transport to refineries. In 2009, 9500 carloads of crude oil originated on US Class I Railroads. In 2013, that number increased, to an estimated 400,000 carloads.

In rail transport, the U.S. DOT-111 tank car, also known as the CTC-111A in Canada, is a type of non-pressure tank car in common use in North America. Up to 80% of the Canadian fleet, and 69% of U.S. rail tank cars are DOT-111 type. Hydraulic fracturing of new wells in the shale oil fields in the interior of North America has rapidly increased the use of DOT-111 cars to transport crude oil to existing refineries along the coasts. BNSF plans to buy 5,000 next-generation tank cars for transporting crude oil.

On July 6, 2013, an unattended 74-car freight train carrying Bakken formation crude oil in Lac-Mégantic derailed and ran away , resulting in the fire and explosion of multiple tank cars. Lac-Mégantic is located in the Eastern Townships of the Canadian province of Quebec. Forty-two people were confirmed dead with 5 more missing and presumed dead. People were seated in a bar at 1 AM, enjoying good company when suddenly faced with a runaway exploding train. More than 30 buildings in the town’s center, roughly half of the downtown area, were destroyed.

In November 2013, in Aliceville, Pickens County, Alabama, a Genesee & Wyoming company was the carrier for a 90-car train, of which 20 derailed and exploded. The train originated in Amory, Mississippi and was scheduled for a pipeline terminal in Walnut Hill, Florida that is owned by Genesis Energy. The final destination for the shipment was to have been the Shell Oil refinery in Mobile, Alabama. The accident happened in a depopulated wetlands area. The Institute for Southern Studies reports cleanup for the Alabama oil train wreck was met with official neglect.

On December 30, 2013, an oil train explosion occurred in Casselton, North Dakota causing the town to be evacuated. The BNSF train was more than 100 cars and 1.6km long, of which at least 10 cars were destroyed. Reports were that another train carrying grain derailed first, causing the adjacent Bakken formation cars to derail. Three days later, the USDOT PHMSA wrote that “Recent derailments and resulting fires indicate that the type of crude oil being transported from the Bakken region may be more flammable than traditional heavy crude oil. Casselton mayor Ed McConnell, acknowledging that the town “dodged a bullet”, publicly called on the federal government to review the dangers and urged lawmakers to consider pipelines as a safer option.

On January 16, 2014, the US Department of Transportation (DOT), the Association of American Railroads (AAR), the American Petroleum Institute (API), and the American Short Line and Regional Railroad Association (ASLRRA) met, for a Call to Action on Rail Safety Meeting. On January 22, the US Secretary of Transportation followed up with a letter to attendees, sharing an apparent epiphany that massively understated the obvious:

It is up to all of us to ensure that the crude oil, whether from North Dakota or elsewhere, is transported safely and securely with no adverse impact to Americans or their property.

While the American Association of Railroads points out that any spill via rail, no matter how miniscule, must be reported, it is notable that oil trains spilled more crude last year than in the previous 38 years combined. The AAR is quick to point out that rail transport is actually safer than pipeline transport:

Based on U.S. DOT data, the crude oil “spill rate” for railroads from 2002-2012 was an estimated 2.2 gallons per million ton-miles, compared with an estimated 6.3 for pipelines.

Not surprisingly, pipeline supporters are using the rail mishaps to sway support to pipeline transport (namely Keystone XL), and rail transport supporters argue the reverse, citing hundreds of unreported pipeline spills in North Dakota, as well as reported ones, like the Tesoro 825,200 gallon fracked oil spill in North Dakota.

Yesterday, February 25, federal regulators say “they’ve issued an emergency order requiring tests of crude oil before shipment by rail in response to a string of train explosions and fires since last summer. The Federal Railroad Administration said Tuesday it also is prohibiting shipping oil using the least-protective packing requirements.”

Are the regulating agencies interested in doing anything meaningful, or are they hostages to industry, getting together every once in a while, to issue a proclamation about something, giving the appearance of action?

Related:

Read the rest of this entry »


The death penalty does not bring closure

February 25, 2014

Tuesday, February 25, 2014

Good morning:

Ironically, it is much easier to adjust and begin to focus on how one wants to live the rest of their life when the sentence is life without parole.

The death penalty does not bring closure.

Instead, it brings year after year after year of appeals, collateral attacks, stays of execution and remand hearings. The emotional roller coaster may last more than 20 years and there is no certainty that the process will end in an execution.

Putting one’s life on hold and investing one’s limited amount of energy into obsessively and compulsively hating another person and praying for their death is self-destructive.

Nothing good can come of it.


Time to permanently stop executions by lethal injection

February 24, 2014

Monday, February 24, 2014

Good morning:

The death penalty is back in the news today as Missouri gets ready to execute Michael Taylor by lethal injection on Wednesday for the rape and stabbing-death of 15-year-old Ann Harrison in 1989.

The issue is not a claim of innocence because Taylor has admitted to kidnapping her from a school bus-stop in Kansas City and committing the crimes with Roderick Nunley, who also is on death row.

The issue is about the manner of execution. Taylor’s lawyers claim that the State of Missouri plans to execute him by lethal injection using a secret mix of chemicals in violation of the Eighth Amendment prohibition against cruel and unusual punishment made applicable to the states by the Due Process Clause of the 14th Amendment.

This is a serious claim. For example, he barely avoided execution in 2006, when a court issued an order staying his execution after the doctor who carried out the executions by lethal injection admitted that he had used improper dosages.

The problem today is that the states can no longer use the three-drug cocktail approved for executions by a plurality of the United States Supreme Court in Baze v. Rees, 128 S.Ct. 1520, 1526-1527, 1537 (2008).

A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. It is also the method used by the Federal Government. See 18 U.S.C. § 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a-6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (C.A.6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493-494, 541, 558-559.

/snip/

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

Meanwhile, on January 21, 2011, Hospira (the only pharmaceutical company that manufactures sodium thiopental, which is also known as Pentothal) announced that it would no longer produce it.

The company issued the following explanation for its decision:

Hospira had intended to produce Pentothal at its Italian plant. In the last month, we’ve had ongoing dialogue with the Italian authorities concerning the use of Pentothal in capital punishment procedures in the United States – a use Hospira has never condoned. Italy’s intent is that we control the product all the way to the ultimate end user to prevent use in capital punishment. These discussions and internal deliberation, as well as conversations with wholesalers – the primary distributors of the product to customers – led us to believe we could not prevent the drug from being diverted to departments of corrections for use in capital punishment procedures.

The State of Ohio executed Dennis McGuire on January 16th using midazolam and hydromorphone that caused him to writhe in pain for 25 minutes before he died prompting Ohio Governor John Kasich to order an 8-month stay of execution for Gregory Lott in order to allow the Department of Corrections to review the state’s lethal injection procedure.

That was a good idea, given what happened, since the method of execution likely would not have satisfied the SCOTUS test.

Figuratively speaking, the State of Missouri “hit the streets” to find a drug to kill people.

The The Death Penalty Information Center reports,

In Missouri, the Director of the Department of Corrections testified [before the House Committee on Government Oversight and Accountability] that the state obtains its lethal injection drugs by sending a correctional official to another state with $11,000 in cash to pay a compounding pharmacy called The Apothecary Shoppe. The officer then hand delivers the drug to the department. At a legislative hearing on February 10, George Lombardi of the DOC said pentobarbital was obtained in Oklahoma by paying in cash in order to maintain the anonymity of the pharmacy. Also testifying was Jacob Luby, an attorney with the Death Penalty Litigation Center. Luby raised concerns that the drug would not be stored at the proper temperature in transport: “First, let’s address the fact that this drug is supposed to be kept frozen and not at room temperature,” Luby said. “We’ve got someone driving a drug across state lines after purchasing it in cash and delivering it to the department and until a few weeks ago, we didn’t even know who was selling us the drug.” Bills have been proposed in Missouri to require execution protocols to be more open to public scrutiny. The Department of Corrections is currently exempt from that process.

We now know why Missouri officials were so secretive about their method of acquiring Pentobarbitol, which is also known as Nembutal, and using it to execute people. The drug, which is similar to Pentothal, is produced by Lundbeck, a pharmaceutical company in Deerfield, IL. On January 26, 2011 the company contacted Gary C. Mohr, Director of the Ohio Department of Corrections and Rehabilitation and asked him to stop using Pentobarbitol to execute people.

The manufacturers of other drugs, such as propofol and phenobarbitol, also have objected to the use of their products to execute people and have taken steps to prevent states from acquiring them for that purpose.

The DPIC also reports:

Both the American Medical Association (AMA) and the National Association of Emergency Medical Technicians (NAEMT) recently issued public statements reminding members of their ethical obligation not to participate in legally authorized executions. As courts and legislatures throughout the country continue to struggle with questions related to lethal injection procedures, AMA president William G. Plested III noted that AMA policy clearly prohibits medical professionals from participating in executions because it “erodes public confidence in the medical profession.” The NAEMT issued a position paper stating that member participation in executions is forbidden because it “is inconsistent with the ethical precepts and goals of the EMS profession.”

Missouri’s determination to do whatever it needs to do, including acting in secret and paying cash to acquire drugs that will kill people is an absurd tinkering with the machinery of death that is both abhorrent and indefensible to reasonable people.

Death by lethal injection is the last of the “best” solutions for humane executions that do not violate the Eighth Amendment prohibition against cruel and unusual punishment.

The time has come to stop sentencing people to death, permanently stop executions by lethal injection or by any other method and convert all death sentences to life without parole.


Craig Michael Wood’s conduct likely precludes insanity defense

February 23, 2014

Sunday, February 23, 2014

Good morning:

Actions speak louder than words.

Despite his claim of having suffered 40 to 50 blackouts, Craig Michael Wood probably cannot successfully claim insanity.

Insanity is a legal definition, not a medical or psychological definition. You won’t find it in the DSM.

The insanity defense focuses on a defendant’s mental state and requires him to admit committing the acts he is accused of committing.

Section 552.030 (1) of the Missouri Revised Statutes states:

A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect such person was incapable of knowing and appreciating the nature, quality, or wrongfulness of such person’s conduct.

Contrary to the fearful, delusional and fact-free claims of the right-wing-hate-machine, the defense is rarely successful because even so-called crazy and delusional people usually attempt to conceal the crime they committed and/or deny that they committed it.

Their actions speak louder than their words because their behavior demonstrates that they knew they were doing something wrong even if, for example, they thought God commanded them to do it.

Wood’s behavior would not likely satisfy the insanity defense because the circumstantial evidence of his premeditated intent and knowledge that he was committing crimes is so overwhelming as to leave no doubt in a reasonable mind that he was in full command of his faculties, if not his urge to rape and kill a child.

Even though Mr. Wood is unlikely to prevail on a claim of insanity, a claim of impaired mental functioning might still be available to use in mitigation.

One of the first tasks for defense counsel will be to put together a mitigation team with a lawyer and mitigation investigator knowledgeable about mental disorders and the best forensic experts available to test Mr. Wood’s brain functioning and diagnose his condition.

They will be looking for what death-penalty lawyers refer to as “a hole in the brain,” meaning an organic brain disorder or injury (as opposed to a personality disorder) that inhibits his ability to function normally and causes him to act out in a violent, unpredictable and uncontrollable manner.

It’s difficult for a juror to sentence a defendant to death for behavior he cannot control, even if he knows that his behavior is wrong and violates the law.

The problem for Mr. Wood and his defense team is that the Hailey Owens kidnapping and murder shows someone who appears to have planned what he did knowing that it was wrong and illegal. He carried out his plan during a period of approximately 3.5 hours, including an attempt to eliminate evidence and evade capture by executing his victim, cleaning up the crime scene and disposing of her body before the police arrived.

And then there is the child pornography and God only knows what may be recorded on his videos and dvds.

Difficult to imagine that he did not intend to do everything he did to Hailey Owens before he saw her walking home and kidnapped her.

I do not see any evidence of involuntary or unconscious behavior, such as one might expect to see if he has a hole in the brain.

Finally, when confronted by police when he arrived home, he tossed the roll of duct tape that he was carrying into the bed of his pickup truck.

That act suggests that he knew why they were there and he did not want them to notice or question him about the duct tape and what he intended to do with it.

Unfortunately for Mr. Wood and his defense team, his conduct and state of mind do not appear to mitigate what he did. Instead, they appear to aggravate it.

We will have to wait and see how this case works out.


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