Dibor Roberts denied justice

The jury in the Dibor Roberts case returned a verdict that I can only describe as contemptible, finding her guilty of resisting arrest and felony flight from a law officer as a result of a brutal attack upon her by Sgt. Jeff Newnum of the Yavapai County Sheriff's Department.

Greg Nix of Larson newspapers has an interesting insight, suggesting that the trial could have come down to the prosecution painting a picture for the jury of "'angry black woman' v. 'respectable white officer.'" He adds, "I grew up in the South so running the 'angry black woman' strategy is nothing new and generally works for getting convictions."

Perhaps he's right, and the decision was essentially racist. Or maybe the prosecution succeeded in picking jurors who bow down and bang their heads on the floor every time they see a uniformed government employee. Or the result could have resulted from a little bit of both factors.

An appeal is possible, of course. Also, the Maricopa County chapter of the NAACP has asked the U.S. Justice Department to intervene, and Roberts reportedly plans to sue, so she may yet get a measure of justice in this case.

But it bothers me that a creature like Jeff Newnum, who apparently has so little control over his emotions and such an inflated sense of his place in the world, probably walked out of the courtroom feeling vindicated, with a license to assault the people of Yavapai County.

Update: Dibor Roberts was sentenced to six months unsupervised probation. Her attorney, Stephen Renard, said, "This is flat out the lightest sentence I have ever seen for a Class-5 felony, period." That suggests Judge Michael Bluff may have had reservations about the prosecution or the severity of the "offense" committed by Roberts -- especially since he reduced the resisting arrest charge from a Class-6 felony to a Class-1 misdemeanor.

But she still has a conviction on her record.

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FLDS wrongful imprisonment

Texas child welfare officials conceded Tuesday that a newborn's mother, held in foster care as a minor after being removed from a polygamous sect's ranch, is an adult. A Child Protective Services attorney told state District Judge Barbara Walther that the mother of a boy born April 29 is not a minor, as CPS had claimed as justification for holding her.

The woman had been held along with more than 400 children taken last month from a west Texas ranch run by the Fundamentalist Church of Jesus Christ of Latter Day Saints. State officials say the children were endangered by underage and polygamous spiritual marriages. "We were presented with credible evidence that this minor is, in fact, an adult," said CPS spokeswoman Marleigh Meisner. She declined to say what the evidence was or how old the woman is. According to FLDS records, the new mother, Pamela Jeffs, is 18.

She was one of two pregnant sect members who state officials had said were minors. The other sect member, who gave birth to a son Monday, also may be an adult, state officials have said. Both mothers are with their babies, who are in state custody.

CPS has complained that sect members have given different names and ages, confusing the identification process in one of the largest, most convoluted custody cases in U.S. history.

But FLDS spokesman Rod Parker has accused the state of holding on to pregnant women and treating them as minors to ensure the state could take custody of the newborns, who might otherwise be born outside of Texas. A call to Parker was not immediately returned Tuesday.

There are 27 claims of women being misidentified as girls when they were taken into state custody from the Yearning For Zion Ranch in Eldorado. If evidence is provided proving they are not minors, they will be released, Meisner said. "We are still in the midst of an investigation. We continue to speak with the children, parents and others who have information that would be helpful to us," she said. "We cannot just dismiss these cases without credible evidence regarding their ages. We have an obligation to protect children."

The state's admission on Tuesday takes the total number of children in state custody down to 464. Texas child welfare authorities took the children into custody on the argument that the polygamist sect abused children by pushing underage girls into marriage and sex and by raising boys to be future perpetrators. FLDS members have denied any abuse. All the children are expected to get individual hearings starting May 19.

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Australia: It pays to be the son of a cop

A SENIOR constable says he took a breath test on behalf of a teenager with a blood-alcohol reading of .2 per cent because he felt sorry for him, not because he was the son of a police officer who worked at his station. Mark Christie, from Orange, told the Police Integrity Commission that he carefully turned his back to a CCTV camera and blew into a breath analysis machine to protect Adam Clunes, 19, from a drink-driving charge. He knew Mr Clunes - who had been out drinking before driving back to his girlfriend's house, despite being on P-plates - would lose his licence if he was convicted. "I felt a great deal of empathy for his position."

That the boy's father was a police officer "had nothing to do with my decision", even though he previously tested others who faced losing their licence. "I want the Commissioner to understand and believe me that I acted alone," Senior Constable Christie said.

The commission heard that Mr Clunes's father, Colin, once "had a bitch" that a police officer had issued his son with two traffic infringements, one for driving more than 30kmh above the speed limit, and one for failing to put P-plates on the car. Senior Constable Clunes told the commission that he thought the officer had "loaded up" his son on that occasion, and that the second ticket was unnecessary.

Constable Kate Lancer arrested Mr Clunes at a roadside breathalyser and took him to the station for the second test. She knew the teenager, she had worked with his father and knew of his father's displeasure about the earlier tickets. She contacted Senior Constable Clunes about the arrest.

When asked whether Senior Constable Clunes told her "we have got to do something, Katie, he will lose his licence", she said yes, although did not know what he meant. Senior Constable Clunes denied protecting his son, saying he simply told a colleague to "do what you've got to do". It did cross his mind that a colleague may have taken the test at the station on his son's behalf.

Source. (Via Australian Politics)



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Collaborators in a civil rights violation

Via Radley Balko comes the tale of Tunde Clement, a New York City resident stopped in the Albany, New York, bus terminal by police for no good reason, subject to a brutal search, and then billed for the cost of his own abuse.

He was quickly handcuffed and falsely arrested. He was taken to a station to be strip-searched and then to a hospital, where doctors forcibly sedated him with a cocktail of powerful drugs, including one that clouded his memory of the incident.

A camera was inserted in his rectum, he was forced to vomit and his blood and urine were tested for drugs and alcohol. Scans of his digestive system were performed using X-ray machines, according to hospital records obtained by the Times Union.

The search, conducted without a search warrant, came up empty. In all, Clement spent more than 10 hours in custody before being released with nothing more than an appearance ticket for resisting arrest -- a charge that was later dismissed.

Clement was billed $6,792 by the Albany Medical Center Hospital for the cost of his forcible drugging and ... well ... anal rape. The egregious misconduct by Albany County Sheriff's Department deputies in the case is obvious. The Times-Union article rightly expends much ink on the history of abusive and, apparently, racially motivated searches conducted by police at that bus terminal. But what about the doctors and nurses who voluntarily participated in the violation of this man's rights?

[J]ust before noon, Clement -- fully shackled and still in custody for a minor offense -- shuffled into Albany Medical Center Hospital with a phalanx of cops at his side, hospital records show. He was locked in a gurney and listened anxiously as a group of doctors and nurses debated the cops' request to have Clement forcibly sedated so his body could be searched for drugs. The doctors asked Clement to sign a consent form, but he refused.

The medical records show one of the doctors placed a call to the hospital's risk management director to assess the liability exposure of what they were about to do. In some cases, prisoners or people under arrest can be forcibly sedated without a court order if they are in imminent danger, such as when a bag of drugs bursts open inside them and they begin to have a seizure or fall unconscious. But the hospital's records indicate Clement was behaving normally and showed no signs of any medical emergency.

"Spoke to Shirley of Risk Management," a physician wrote, documenting the medical decision-making that afternoon. "OK to treat, sedate & remove FOB (foreign object body) against (patient's) will despite his personal refusal."

Note that police had no search warrant. Even if a warrant had been presented, medical personnel are under no obligation to cooperate with police in inflicting such an ordeal on a prisoner. The article refers to one San Francisco hospital's refusal to cooperate with police, and I quickly found another such incident from Davidson County, Tennessee in which doctors balked at even drawing blood without the subject's approval. There seems to be plenty of precedent for declining to forcibly administer powerful drugs and then insert equipment into an unwilling patient's rectum without a really good reason.

So what excuse do the medical personnel at Albany Medical Center Hospital have for committing battery upon Tunde Clement? The hospital administration seems to have clammed up, but I can think of two different rationales for the actions of the doctors and nurses at that scene.

Most or all of the people present may have been the kind of creatures who think the police can do no wrong. They may have willingly collaborated in the brutalization of a fellow human being.

Or maybe the doctors and nurses were intimidated by overbearing police officers. Perhaps, surrounded by ticked-off deputies with a reputation for working outside the bounds of the law, they grudgingly cooperated with the egregious civil rights violation. Dissenters in the room may have walked away and refused to participate, or else swallowed their pride for fear of their jobs.

I lean toward the willing-collaborators explanation. Emergency room docs -- and this was almost certainly in the emergency room -- are, by and large (yes, I'm generalizing here in a big way), cowboy adrenaline junkies with minimal empathy. They don't intimidate easily, and they don't spend loads of time agonizing over moral quandaries. They're also likely to laugh at cops who get in their faces. "Were you counting on anesthesia the next time a uniform shows up in my ER?" is a not-unlikely rejoinder to any police officer who tries to get emergency room staffers to do what they don't want to do.

But either way, medical personnel, like the rest of us, are responsible for their actions. In the absence of guns at their heads, doctors and nurses must answer for the things they do -- even if those things are performed at the request of state officials. You don't get a moral get-out-of-jail-free card because the cops said "pretty please" before you agreed to participate in a horrible civil rights violation.

As much as I hope the Albany County Sheriff's Department is penalized for its conduct in this matter (and its overall history of conducting abusive searches) I also think the administration and some staff members at the Albany Medical Center Hospital also need to answer for their actions. As the Clement case makes abundantly clear, collaborators make possible rights violations that don't need to happen. Hospital personnel couldn't have undone Clement's arrest, but they could have refused to enable -- and had no right to participate in -- the rest of the man's ordeal.

Let's hope Tunde Clement's lawsuit against both institutions makes him a wealthy man -- and the cops and doctors of Albany just a little more thoughtful.

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Sun lover battles the goons



Beach Bob likes to sunbathe in a Speedo. Nearly every cloudless morning for more than 10 years, he’s wheeled his tattered lounger down to the same spot, which he says is due west of where the boardwalk opens onto the sand at Bonita Beach, and sets up camp for the day.

And so his retirement was going. Sun-drenched, uneventful. Until one day a Lee County Sheriff’s deputy stopped by and wrote him a warning for trespassing. The reason? “Exposed scrotum,” the notice read. “Never return to Bonita Beach Main Access.”

But it turns out that, belied by his self-proclaimed “super-lazy” lifestyle, Beach Bob (more properly known as Robert Hezzelwood, 61, retired court reporter and Bonita Springs resident of 16 years) is a heckuva fighter. Not the sort to let even a warning of a misdemeanor charge go unchallenged. Not when it comes to his blue Speedo. Not when he says he was falsely accused.

Eventually, he got the trespass warning thrown out. It wasn’t easy. He hired a lawyer, studied maps of the Collier-Lee county line, trotted some of the other beach regulars up to Fort Myers to testify on his behalf. They reported the patch of sand he claims every day is in fact south of the Lee border, so Deputy William Dunaske had no business patrolling there anyway. They said Hezzelwood never rolls in the sides of his Speedo like the deputy alleged.

Then, even winning in court wasn’t enough. Eighteen months after he received the trespass warning, and about a year after a judge threw it out, Hezzelwood now says he’s planning to sue the Lee County Sheriff’s Office. He claims his civil rights were violated. “This whole thing could have been just nipped right in the bud early on,” Hezzelwood said, if Sheriff Mike Scott had responded to him by saying, “‘Yeah, our guy blew it, we apologize.’”

Scott says his office looked into Hezzelwood’s allegations that Dunaske had lied about the exposed scrotum and found in favor of the deputy, declining to launch an investigation. That didn’t satisfy Hezzelwood. “My concern is, if that can happen to me, “ he said, “and the sheriff stonewalls me, I don’t think I’m that unique. And anybody is at risk.”

This story begins in 2005. Hezzelwood, who says he has suffered insomnia because of the stress, meticulously catalogues the relevant dates and records of his correspondence in the case. According to Beach Bob, his first run-in with Dunaske was on July 25 — the deputy approached his lounger and told him to unroll the Speedo. “I have occasionally rolled the top of the Speedo so that the (straps) are a little narrow,” Hezzelwood explained. But he insists there’s nothing X-rated about it: “I’m an old, retired fart who likes sitting on the beach. I was a little embarrassed.”

He says he challenged the deputy, believing they were positioned south of the Lee border and out of his jurisdiction. Soon after, Hezzelwood says, he marched off to the Sheriff’s Office to complain to a supervisor.

To David Mourick, the attorney who represented Hezzelwood in his fight over the warning, what happened next was a matter of prurience. “It was just a Barney Fife that thought it just wasn’t proper, (Hezzelwood) wearing that bathing suit.” For his part, Hezzelwood says it was retaliation.

More than a year later, on October 31, 2006, Dunaske approached Hezzelwood again on the beach. Out came the trespass notice. “The first couple (verbal) warnings didn’t obviously make an impression on him,” Dunaske, who says he’d in fact told Hezzelwood multiple times before not to expose his genitals, said in an interview. “He didn’t attempt to cover up or anything. He said he just wanted to get the most sun he could get.”

Legally, Mourick says, a trespass has to be based on somebody’s complaint. Dunaske said several people complained to him about Hezzelwood’s bathing suit — he told the attorneys in his deposition that the suit was rolled in so much that part of Hezzelwood’s penis poked out. When Maurick pressed him to say who precisely complained, he said they were vacationers who didn’t want to identify themselves.

In Hezzelwood’s eyes, these are all manifestations of Dunaske’s lies. But the deputy says so many people were bothered by the skimpy suit that he was once cheered by beach-goers for telling Hezzelwood to cover himself. As for the county line, Dunaske points out that as a contract deputy for the city of Bonita Springs, he knew precisely where he was when he wrote the warning. “I have no doubt I was in Lee County, and Mr. Hezzelwood was in Lee County. But I respect the judge’s” decision, he said.

It was, indeed, the jurisdictional issue that the judge cited in tossing out the warning. Not only did Hezzelwood’s beach friends place him south of the county line, but Hezzelwood claims a deputy-trainee who was with Dunaske that day later said the same. “I think that’s what the judge chose to go with because it was easiest,” Mourick said.

He wondered why Dunaske didn’t simply arrest Hezzelwood on an indecent exposure charge, if that was the offense underlying the trespass. “It’d be like trespassing someone from a public highway because they’re driving drunk. You arrest them for driving drunk.” In his deposition, Dunaske said his supervisors told him to pursue the trespass route in such cases. Now, he’s a detective assigned to the Central District. In his more than 10 years in law enforcement, he said Hezzelwood’s case doesn’t particularly stand out. “It wasn’t the crime of the century,” he said. “I was doing my job and saw an infraction that I thought bothered the people who were legitimately enjoying the beach.”

But Hezzelwood says the incident mattered a great deal to him. “It frightens me and embarrasses me to go public with it. But by the same token, I don’t know what else to do,” he said. “I’m a civilian out here who’s been picked on by a little bully deputy and that’s wrong. It’s just wrong.” “It was a good case in that it showed these deputies can’t just go in there and trespass people just because they don’t like what they’re wearing,” Mourick said. He asked the reporter if she’d ever seen Hezzelwood in his Speedo. “I don’t find it attractive,” Mourick said, “but I think if he wants to look ridiculous he can go ahead and do it.”

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Canadian victims advocate says justice system to blame for wrongful conviction

"Someone made a mistake" but not the cops involved?? Give us a break!

A lobby group that defends the wrongfully convicted said Tuesday it is scandalous that one police officer is taking the fall for the entire justice system that sent Simon Marshall, a mentally handicapped man, to jail for five years for sexual crimes he didn't commit. Three Quebec police officers have been cleared by the Police Ethics Commission of botching the case against Marshall, who was convicted of sexual assaults and later cleared by the Court of Appeal. But the commission blamed one of the three officers for making false accusations against Marshall regarding one of the alleged victims.

"It's a second scandal after the first scandal when it was revealed Marshall was innocent," said Carlo Tarini, director of Injustice Quebec, a group lobbying for victims of judicial errors. "It's a major blunder from the Justice Department and the prosecuting attorneys that is responsible for what happened to Marshall and yet in the end, who gets the blame? One police officer," he added. Tarini renewed his call for a broader public investigation into the entire Marshall case, but the Justice Department has closed the door to such an inquiry.

In 1997, Marshall was arrested and charged with multiple counts of sexual assault. Marshall, who was nicknamed the Ste-Foy Rapist, confessed to the crimes, and was released in 2003. Soon after his release, Marshall was arrested on three more counts of sexual assault. Again, he confessed.

He was about to be sentenced and risked being declared a dangerous offender when DNA evidence cleared him. Quebec City's top police officials acknowledged someone made a mistake and overlooked DNA tests. A Quebec Court of Appeal ruling reversed all of Marshall's convictions in 2005. The Quebec government awarded him $2.3 million in compensation in December 2006 for the wrongful conviction, the highest compensation in provincial history.

Quebec's police conduct commission investigated the officers who handled the case - retired Ste. Foy police Lt. Luc Barrette, Det.-Sgt Raymond Matte, who is also retired from the Ste. Foy force, and Det.-Sgt. Helene Turgeon of the Quebec City force. Pierre Gagne, the presiding ethics commissioner in the case, found Barrette, Matte and Turgeon didn't abuse their authority or conduct incomplete investigations. The commissioner found Matte did go against his ethics code by making false accusations in connection with one of the cases in 1997. The charge related to that false accusation was dropped before Marshall's trial started.

Lawyer Robert DeBlois, representing Matte and Turgeon, said the police officers were "very happy" about the decision. "They were judged by the public before the hearings started and are very relieved to see their names cleared," he said. He added the blame against Matte is "minor."

Lawyer Serge Goulet, who represented Marshall during the appeal procedures and negotiations for compensation, said there is only one conclusion to be drawn from the decision. "This means that the police officers didn't go against their ethics code during their investigation, that's it," Goulet stressed. "The commission didn't say anything about the quality of their work. You can botch your job and not go against your ethics code."

Goulet said the Marshall family doesn't cry out for revenge and wants to turn the page. Marshall's family said while in prison he was the victim of sexual, physical and verbal abuse from fellow inmates. He was sent to a psychiatric facility following his ordeal in prison and he is still there, Goulet said. "He still can't stay alone and there is no sign that in the near future he will be able to live in society," he said.

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Scotland: Fraser case wrapup

Previously covered here on June 12, 2006. It seems that sloppy police and prosecution work went very near to letting a guilty man go free

NAT Fraser, the businessman convicted of murdering his estranged wife, yesterday failed in an attempt to have his conviction quashed. The decision came a few days after the tenth anniversary of his wife's disappearance. Fraser, 48, of Elgin, Moray, was jailed in 2003 after a jury found him guilty of murdering Arlene, 33, despite no body being found.

As they emerged from the court in Edinburgh, Mrs Fraser's mother, Isabelle Thompson, her father, Hector McInnes, and sister, Carol Gillies, were smiling. With his voice shaking and full of emotion, Mr McInnes, who gave a thumbs-up, said: "We are pleased with the outcome. It has taken ten years of our life. Unfortunately, we have not found out about Arlene, but he is where he deserves to be. "He has given us a life sentence, so he deserves a life sentence as well."

But as he was led away from the back of the court building, Fraser tugged on his handcuffs to delay a Reliance officer putting him into a security van and said to waiting reporters: "The fight will go on, as will the fight to get to the truth."

The mother of two went missing from her home in Elgin in April 1998 after waving her two young children, Jamie and Natalie, off to school. Last year Fraser's lawyers claimed he had been the victim of a miscarriage of justice and argued that evidence from two police officers was not disclosed to the defence or to the trial. The prosecution case had included claims that Mrs Fraser's engagement, wedding and eternity rings were placed in the bathroom of her house several days after she vanished. Evidence later emerged that the police officers may have seen the rings in her house shortly after she disappeared.

But yesterday, at the Court of Criminal Appeal in Edinburgh, three senior judges ruled that Fraser's appeal against conviction should be refused. The Lord Justice Clerk, Lord Gill, concluded that the proposed evidence of PCs Neil Lynch and Julie Clark was not new and that even if it was, the verdict could not be regarded as a miscarriage of justice. He said: "The circumstantial evidence alone constituted a compelling case against the appellant. There was evidence that he had motives for the crime. There was evidence of his previous malice and ill-will towards the deceased." Lord Gill added that there was evidence of "preparatory acts" by Fraser in setting up an alibi.

At one point during the proceedings, Fraser tried to interrupt Lord Gill as he delivered his opinion, saying: "Excuse me, excuse me."

In a highly unusual departure from the usual proceedings in a Scottish court, television cameras were also allowed in.

At a press conference in a nearby hotel, Mrs Fraser's family spoke of their "sheer relief". They also revealed that they would be prepared to do a "trade-off" with Fraser, giving him a reduction of his life sentence if he would disclose where Mrs Fraser's body was buried. Mrs Gillies said: "I'm appealing to Nat's human side. We'd like to give Arlene a proper burial and a trade-off might be the only way we can get that information." Mrs Gillies and her father said they were still prepared to put up 20,000 pounds each as a reward for information, despite the fact that no-one had come forward with information in the past.

Mrs Fraser's sister, describing the strain of yesterday's proceedings and seeing Fraser in court, continued: "This case has been full of surprises. I was terrified going into court. I have no feelings towards him. Maybe pity; he's completely ruined his life, he's got nothing ahead of him.

Mrs Gillies added that she "did not feel hatred" towards Fraser. "I just see him as a source of information. He needs to go back to his cell and think about his future. People talk about 'closure'. We will only get closure when Arlene is found. We need to be true to ourselves and accept that we might never know."

The case could now be considered by the Scottish Criminal Case Review Commission if there were sufficient grounds that a miscarriage of justice had occurred.

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Memorandum

This blog is a collection of what I regard as the interesting justice reports and commentary of the day. It therefore consists almost entirely of reprints from other sources, often accompanied by brief comments from me.

Until recently, I had never had from anybody a complaint about my reproducing their writings. I am sure that most people feel as I do: That it is a compliment to have one's writings re-run by someone else.

My post of 12th, however, got an unusual reaction. It reproduces a post on a libertarian group blog called The Line is Here. One member of the group posted a comment thanking me for re-running the piece.

Subsequently, however, I received a most abrasive message from yet another member of the group with an opposite implication: Some woman named Hazel Stone demanded that I delete the post. She also has a rage-filled post about the matter on the group blog. She sounds frankly hormonal.

I have therefore written to the author of the piece -- who has so far not been heard from -- and asked him for his wishes. If he wants it deleted, I will delete it.

I guess that Hazel is a poor thing. Her social relationships must be in a bad way.

A Canadian victim of Mexican corruption

Just in time for Mother's Day, Marjorie Bletcher got what she had been hoping for over the past two years – her daughter. Bletcher's daughter, Brenda Martin, was released on parole from a Kitchener prison Friday night, May 9 and returned to her mother's Trenton home.

"It feels great. Justice prevails in the end," Martin said Monday. Martin, 51, will remain on parole for the next three years and seven months. Her parole conditions stipulate that she stay within 40 kilometres of her mother's home, provide a financial statement, and not associate with convicted criminals, "Providing the statement is easy, I don't have one," Martin joked.

Martin was found guilty in April by a Mexican judge of knowingly accepting illegal funds from her former boss Alyn Waage, who ran a fraudulent investment company that scammed 15,000 investors of $60 million. Martin, who denied having any involvement in the scheme, was sentenced to five years in jail and fined $3,500 Canadian. Following her conviction, Martin was able to apply for a transfer to Corrections Canada.
Although Martin has come a long way from the Guadalajara prison where she spent the past two years and two months, she does not consider herself free. "I'm on parole and considered a convicted felon," she said. "Why does Canada have to assume the sentence passed down to me by a corrupt judicial system? It makes me confused." ...

Martin worked as a chef for Waage, but was fired in 2001. To help prove her innocence, Martin plans to start a website with the assistance of friend and supporter Debra Tieleman. An English version of her conviction will be posted on the website. "The conviction actually says there is no evidence, but I couldn't prove my innocence," Martin said.

Martin said she was never formally arrested and was told she was going to make a declaration before being thrown into the Guadalajara prison. "Basically, I was kidnapped. I wasn't arrested or handcuffed," Martin said. "I was asked for $50,000 in exchange for going to the airport."

Martin believes she was held in prison because she was one of the few left in Mexico with any connection to Waage. Waage's business associate Rebecca Roth was also arrested and sentenced to nine years in prison. "To be convicted of a crime I didn't commit in the first place is a miscarriage of justice," Martin said. "But a miscarriage of justice isn't worth the ink it is written with in Mexico. Mexico is about corruption and who you pay off."

Martin and her mother had questioned the Canadian government's response to her imprisonment, but recent efforts by Secretary of State for Multiculturalism Jason Kenney to bring Martin back to Canada has restored their faith. "They have redeemed themselves as far as I'm concerned," Martin said. However, Martin believes if the Canadian government would have filed an amparo, a constitutional injunction that can be filed when human rights are violated, she would have been home a long time ago. "If the government would have been there my first week of incarceration, I probably wouldn't have spent more than a month in jail," Martin said.

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If you make up the crime, serve the time

Last night's 60 Minutes carried the moving story of the growing number of people sent to prison during the reign of infamous Dallas tough-guy District Attorney Henry Wade who are now being proven innocent and released because of the efforts of the Innocence Project and current DA Craig Watkins. After ten or twenty or more years behind bars without reason, it's remarkable that so many of the wrongly accused have lived long enough to see the light of day again and enjoy at least a modicum of compensation ($50,000 for each year of incarceration, or $100,000 per year if sentenced to death).

The immediate mechanism for the release of these falsely imprisoned Texans has largely been DNA but, in at least some cases, it seems that the original prosecutors deliberately withheld evidence that would have assisted the defense (the Dallas Morning News reports that about half of belated exonerations in the state, and three in Dallas County, involve withheld evidence). That's illegal, but it carries no penalty under law.

DA Watkins wants the power to bring criminal charges against prosecutors who withhold evidence. I think that's appropriate. But what should the penalty be?

Here's an idea: Any prosecutor who withholds exculpatory evidence in a trial, leading to the conviction and imprisonment of an innocent person, should have to serve as many years behind bars as that person did before being exonerated. There should be a minimum sentence, of course, so that any such misconduct carries serious prison time. Depriving innocent people of their liberty is among the more despicable acts I can imagine.

Unfortunately, Henry Wade himself is immune from prosecution, having gone to Hell in 2001. But some of his staff must still be kicking around.

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The Men in Black

I’ve said it before, tyranny will enter this country not at a federal level but at the local level. And the people who are more than happy to bring it to you will be the police.

SPRINGFIELD, Mass. — Springfield’s men in black are returning.

The city’s new police commissioner, William Fitchet, says members of the department’s Street Crime Unit will again don black, military-style uniforms as part of his strategy to deal with youth violence.

Fitchet’s predecessor, Edward Flynn, had ditched the black attire as part of an effort to soften the image of the unit. Flynn left Springfield in January to become the police chief in Milwaukee.

Sgt. John Delaney told a city council hearing Wednesday that the stark uniforms send a message to criminals that officers are serious about making arrests.

Delaney said a sense of “fear” has been missing for the past few years.

We do not need to fear the police. Criminals need to fear getting caught and the repercussions of the law, but being that citizens can enforce the law, that fear shouldn’t be an image of a man in black with scary weapons.

Crime is a problem for many reasons, none of which involve making the police into jackbooted thugs. If it were possible to only cause fear into the hearts of the criminals then I would say go for it, but you can’t. Instead, the public is left with cops who’s image is made to strike fear into their hearts as well.

Is this what we want? For the police to expect us to fear them? How much more authority do we need to give them to do their jobs? Why is it that the common American thinks that the law only belongs in the hands of police when it is we the people who grant them that right? How can we grant them something that isn’t ours to give?

So many Americans are so non self reliant that they continuously give up more and more authority to the state to try to maintain their lifestyle. Instead of protecting themselves, they rely on others to do it. But now, those who have been given so much authority are beginning to see themselves as the masters, and it is apparent that they want to make sure you know it as well. Is this what we really want?

Besides, if the police really wanted to put fear into the hearts of the citizenry, maybe they should dress like clowns instead.

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Update:

Hazel the hormonal hippopotamus has demanded in most abusive terms that I delete the above article but as she is not the author of it, I do not see that she has any standing in the matter. She would certainly now have to apologize for her egregious abuse before I deleted it. I have the feeling that apologies are not one of her talents though.

"The line is here" is a libertarian blog, as is this one, so one would think that libertarians would make an effort to be polite to one-another. It would however appear that politeness is just not one of the talents of Hazel Stone. Or should that be "Stoned Hazel"? She sure sounds like it at times. Was the original Hazel Stone in Heinlein stoned? I don't know. It is many years since I read Heinlein.

For no very clear reason, the Hazy Harridan threatened that she was going to email lots of people and tell them what a bad egg I am. The idea was apparently that they would write to me to demand things. Well, so far I have had not a single communication from anyone about my blog. So I suspect that I am not the only one who is unimpressed and unmoved by blowhards.

I guess that the pseudonymous Hazel fancies herself as a Heinlein character. Libertarians tend to like many of Heinlein's scenarios. But I wonder does Hazel know that, to many children, Hazel is the name of a hippopotamus? Not such a flattering image! But I suspect that Hazel is too sour to have had children so she would not know much about children's books.

Bussorah is of course an Indian name. I wonder if "Hazel" is prejudiced against brown-skinned people? That would be consistent with her remarks so far. I gather that, for Hazel, the line is nowhere. The f-bombs in the language she has directed at me would certainly suggest that. Foul language is not the sign of a fine mind.

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Another goon with a badge

Chasing storms is what Brian Barnes does for a living. And it was while he was doing just that, that he says he found himself in a difficult and strange situation involving a Crane County Sheriff's Deputy. Barnes was out on Tuesday in Crane County as severe weather moved across the region. Crane County was under a tornado warning for about an hour Tuesday night.

"I told him that I was helping out the National Weather Service in San Angelo, and they were relaying my reports to Midland. He told me he didn't care, and that I needed to go." Barnes thought it was his obligation to stay put and follow the storms, a decision that landed him in jail. "He jumped out and put me in handcuffs. I turned around and I remember him slamming me up against his vehicle, and then it all got kind of scary."

Among the witnesses was Dennis Greer, who had a similar run-in, with the same deputy, just minutes earlier while he was shooting picutures of the same storm for the local newspaper. "His first words to me were, 'are you a blankety-blank idiot?' He told me if I didn't leave, I was going to jail, flat out," Greer said.

Barnes was arrested at a road side park on Highway 385 and charged with obstruction of a highway or other passage way. According to witnesses, there is plenty of room on on the road in front of the park for a vehicle to get by. That's why they are questioning the validity of the charge. Dennis Greer says, "The guy wasn't blocking anything. He was able to drive a full size truck by with no problem."

In addition to the charges, people were taken aback by the deputy's attitude. "He came down there, and was just very abusive in his language. Never once did he state to me why he would arrest me, or why he was doing anything", Greer says.

Barnes adds, "He continued to say that I was the example why people were stopping and that I was putting those other people at risk, because they were stopping behind me." Barnes says that during his years of storm chasing, this is the first time anything like this has ever happened to him. And despite this one incident, he has good things to say, about West Texas. "I have to say that everytime I come to West Texas, the people here are outstanding. They are the most friendly people I've ever met," he said.

Barnes was released on a $2,000 bond. He plans to hire a Dallas attorney to handle his case.

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Jury acquits sex-while-asleep man

This nonsense succeeds regularly in Britain. Looks like it is spreading

A Northern Territory [Australia] man has been found not guilty of gross indecency and sexual intercourse without consent after a jury accepted his defence that he suffered "sex-somnia" and may have been capable of having sex in his sleep. The jury heard that Leonard Andrew Spencer, 48, of Nhulunbuy, in northeast Arnhem Land, suffered from somnambulistic episodes, had a history of sleepwalking and had on a previous occasion tried to have sex while asleep.

Judge Steve Southwood thanked the jury, which took an hour to reach its verdict, for suffering through long legal argument in what he believed was the first case of its type in Australia.

Mr Spencer's lawyer, Jon Tippett QC, said no Australian had ever successfully used "sex-sleep," as the condition is commonly known, as a defence. He was reluctant to claim the sex-sleep defence as a legal first, believing the jury may have relied on other matters as well to reach its verdict.

A woman who was house-sitting in Mr Spencer's house said that on the morning of June 2 last year she had risen early and taken her boyfriend to work. She claimed she returned home and went back to sleep but awoke at about 7.20am to find a man, whom she initially thought was her boyfriend, having sex with her. She fled the house and Mr Spencer was arrested. While he accepted he had mistakenly gone to the woman's bedroom, he claimed no recollection of having sex.

A psychiatrist, Lester Walton, gave evidence that memory loss was "a hallmark of somnambulist behaviour" and believed it was possible that Mr Spencer suffered from sexsomnia. Dr Walton based this on the fact that Mr Spencer's estranged wife, from whom he had recently separated, had testified that when they were together he would sleepwalk on a monthly basis. Dr Walton said Mr Spencer was depressed and on medication, which may have triggered his somnambulist events.

Mr Tippett also concentrated on the fact that vaginal swabs taken from the complainant revealed no trace of Mr Spencer's DNA; and that police - in what Mr Tippett called "an evidentiary train-wreck" - had failed to swab clothing and bedsheets that might have either helped or hindered his client's case. He argued the case that his client had sex with the complainant at all had not been made out.

Mr Spencer cried in the dock and said he wanted his personal items returned. He also asked the judge if he could go. Permission was granted.

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Picture of slain woman opens trial for police drug thug

A Fulton County jury saw Kathryn Johnston on Monday shortly after seeing an Atlanta police officer accused of playing a role in her death. Prosecutor Kellie Hill put a photograph of the 92-year-old woman on a monitor as the trial in Superior Court began. Then a steady BANG, BANG, BANG . . . rang out from a recorder, eventually reaching the number 39. "That was 39 shots, the last thing Kathryn Johnston heard," Hill quietly told the jury before testimony started. "She died in the sanctity of her home."

Hill looked at Officer Arthur Tesler, seated at the defense table. "The evidence will show that the defendant never fired his weapon. But the evidence will also show that his actions led to the death of Mrs. Johnston." Hill told jurors that this was a case about "drugs, deceit, death and disgrace." Tesler is charged with violating his oath of office, lying in an official investigation and false imprisonment because police illegally surrounded her house in northwest Atlanta without proper authority.

One of Tesler's partners, Officer J.R. Smith, lied to a judge to get a no-knock search warrant for Johnston's home on Neal Street after a drug dealer they had arrested told them that there was a kilo of cocaine in the house. Smith told the judge they had verified that drugs were being sold at the house when they had only taken the dealer's word.

Johnston fired one round from a revolver when she heard officers breaking down her door, prompting a fusillade from the officers. They planted drugs in the basement of the house once they realized they had been misled and had killed an innocent woman. Tesler and two other officers accused in the case are white and Johnston was black. The case has fueled outrage and suspicion in the African-American community, and politicians and political organizers monitored the trial Monday morning.

Tesler's lawyer, William McKenney, said Atlantans had every reason to be suspicious of the police. He described a department in which lying to get search warrants and planting drugs were routine practices fueled by arrest quotas demanded of the narcotics units —- nine arrests a month and two search warrants per officer.

He contended his client, a relatively new narcotics investigator and a six-year veteran of the force, was not a part of the lies told to secure the warrant and was set up by his more experienced former partners, Smith and Gregg Junnier, the most senior member with 18 years with the department, McKenney said. "You will learn that 'insurance drugs' were kept by Junnier and Smith, basically throw-downs," McKenney said. "If they searched a house and they didn't find drugs, they would plant drugs."

Both Smith and Junnier, who were facing life in prison for Johnston's death, have entered into plea bargains and are expected to testify against Tesler. Smith and Junnier face up to 12 and 10 years, respectively, depending on cooperation. Tesler faces 15 years. "These were senior officers who were instructing the rookie," McKenney said.

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Stupid British law hands druggie $9 million

British law "freezes" suspected drug proceeds so he could not pay a lawyer and the government was too mean to hire one for him -- but he could not be tried without a lawyer. So he kept the cash

A convicted drugs offender has escaped a confiscation order for up to 4.5 million pounds of his assets because legal aid barristers would not take on the case for the fixed fee of 175.25 pounds a day. In a dramatic illustration of the impact of new legal aid fees, the man had to act for himself and won an appeal for the confiscation order to be set aside because he was not represented by a lawyer.

Eighteen sets of chambers had been approached in London, Leeds and Sheffield – involving a total of 30 barristers – to see if they would defend the man identified only as P in the confiscation hearing. Jansen Versfeld, the solicitor who conducted the fruitless search for a barrister, said: “Because of the very low rate of pay for these hearings, 175.25 per day, and the amount of work and complexity involved, with no payment for preparation, none could undertake to do it.”

Mr Versfeld, who is with Morgan Rose solicitors, said that there were 6,586 pages of documents and a total of 4,548 transactions that would require arranging into a manageable form by experienced senior counsel for an estimated six-week hearing.

Judge David Mole, QC, sitting at Harrow Crown Court, accepted that the man could not have a fair trial as legal aid “does not provide sufficient funding to pay for the necessary representation”. At the same time, the law prevented him from using his own assets to pay for lawyers, the judge said.“The consequence was that no barrister of remotely appropriate experience and ability had been prepared to take on the case from any of the . . . chambers that the appellant’s solicitors had contacted.” The judge had suggested that junior counsel might take the case but Mr Versfeld pointed out that it would run contrary to the Bar’s code of conduct for a barrister to accept instructions in a case for which he or she lacked experience. An anonymity order protecting the man’s identity was made in the interests of his personal safety.

The man’s original lawyers at his trial – where he was convicted of two drug-related offences – were unable (through no fault of his) to continue with the confiscation hearing. The offender, who received a custodial sentence from which he was released after serving nine months, paid his original lawyers privately. But when it came to the confiscation hearing he was unable to use his own assets because they were frozen, so he had to apply for legal aid.

The Crown Prosecution Service alleged that P had benefited from his criminal lifestyle to the sum of 4.5 million and in the first instance were seeking to confiscate assets worth 1.5 million.

Mr Versfeld said: “Normally, the same lawyers would continue with the confiscation hearing and would just accept the lower fees because they had already done the main trial. But just to do the confiscation hearing on its own is not viable.” The case highlighted the inadequacy of the funding regulations post October 2005 under the so-called graduated fees scheme (a fixed scale of fees), said Mr Versfeld. It also exposed the “draconian” provisions of the Proceeds of Crime Act 2002 under which offenders convicted of a drugs-related offence faced having assets seized that could in theory be counted as gained from a “criminal lifestyle”. “So although this defendant was convicted of offences only involving a few hundred pounds’ worth of cannabis, he found himself at risk of losing 4.5 million worth of assets – with the burden on him to prove that they were not ill-gotten gains. On top of that, he was prohibited from using those assets for his own defence.”

The judge agreed with P’s case and halted the proceedings as an abuse of process. He said: “If P has to rely upon legal aid, there is no prospect of him getting properly qualified counsel.” Mr Versfeld said: “I would expect to see a lot more cases like this, where the issues are complex but funding is insufficient to obtain appropriately experienced counsel.”

Tony McDaid, practice director of No5 Chambers, a set of barristers based in Birmingham, London and Bristol, also gave warning that more cases were likely to be turned away by barristers. He said: “I have just had to turn away a similar case as I calculate that on the hours of preparation my counsel would have been paid 6.50 per hour. The only option in such cases is for the defendant then to seek to represent himself.”

The Bar operates a “cab rank” principle which means that barristers are meant to take the next case that comes along, if they are free and competent to do it. But they can turn down a case if the rate of pay is not fair and reasonable for the work involved.

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FLDS: A Possibly Relevant Story

Many years ago, sitting in an airport waiting for a flight from Bombay to Sydney, I got into a conversation with a woman waiting for the same flight. We ended up sitting next to each other and spent a good deal of time during the flight talking. It was one of the more interesting conversations I have ever had.

She was from a traditional south Indian family, flying out to Sydney to join her husband, a physician. Her marriage had been arranged for her by her parents, although she had been permitted to meet her prospective husband in advance and pretty clearly could have vetoed their choice. She was as intrigued by the odd marital institutions of my society as I was by those of hers.

Most of us tend to assume that our society's institutions are in most ways right and that other places, especially ones with arrangements more like those of our past, are simply backward societies whose inhabitants haven't quite caught up, aren't bright enough to see the obvious superiority of our way of doing things. But the woman I was talking with was obviously intelligent and well educated, a real person not a stick figure in a book or my imagination. It rapidly became clear that I did not have any conclusive arguments to show that pairing up people via romantic love worked better than doing it by arranged marriages. As it happened, she was happily married while my marriage had recently broken up, so the evidence from our very small sample of the alternative approaches favored hers.

I ended the conversation a good deal less certain that I was right and she was wrong.

I mention the story now because it is relevant to my attitude to the FLDS case. I do not want to live in a society where everyone ends up in arranged marriages, polygamous or otherwise. But I do want to live in a society where subgroups with with a wide range of different ideas about how to arrange their lives are free to implement them—where, for instance, the Oneida community, which I discussed in an earlier post, is possible.

Obviously there are some limits to that—I am not proposing that Kali worshippers be free to go about assassinating people. If it is true, as alleged (with, I think, no evidence), that FLDS brides are literally forced to have sex, that is a crime that ought to be prevented. But a lot of the hostility to the sect, and a lot of the willingness to believe negative claims presented with no evidence by sources that there is little reason to rely on, seems to be based on the fact that their pattern of life and marriage is strikingly different from the norm; people too quickly jump from "different" to "evil" or "crazy." Thus, in the comment thread to an earlier post, we had someone confidently asserting the existence of a sixteen year old girl with four children--on the sole evidence, so far as I could find out, of a statement in an affidavit based on the testimony of an unnamed informant.

Before closing, there are a few scraps of evidence worth mentioning. One is the marriage on the basis of which the head of the sect was convicted of being an accessory to rape. The prosecutors were surely looking for the best possible case—and the older the husband and younger the wife, the better their case would be. Yet the marriage they came up with was between a fourteen year old bride--legal to marry in a fair number of states--and a husband who was not fifty but nineteen. That suggests to me that either marriages of young girls to old husbands are considerably rarer than critics of the sect claim or that wives sufficiently unhappy with their marriage to be willing to cooperate with such a prosecution are very rare, so rare that the prosecutors had to take what they could get.

Another piece of evidence is the striking absence, so far in this case, of defectors from the sect. The children are isolated from their parents under the control of the authorities. The mothers, if they are unhappy with how the sect treated them, may reasonably believe that by testifying against the sect and so pleasing their children's captors they might prove that they are qualified as parents and so get their children back. None of them seem to have done so.

Over the longer term, while there have clearly been defectors from the sect, some very critical of it, my impression is that there haven't been all that many—clearly not enough to threaten the sect's survival. That suggests to me that their social system, however odd, does not produce a lot of people who hate it. That is not a high standard, but it is some basis to conclude that an alternative social system should be allowed to exist.

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Police goons again

US police officers have been recorded on film by a TV helicopter crew dragging two suspected gumnmen from a car and repeatedly kicking and beating them. The video, shot by WTXF-TV, shows three police cars stopping a car on a city street yesterday, two days after a city officer responding to a bank robbery was fatally shot. The tape shows about a dozen officers gathering around the vehicle and pulling three men out. About a half-dozen officers hold two of the men on the ground. Both are kicked repeatedly, while one is seen being punched; one also appears to be struck with a baton. The third man is also subdued.

"On the surface it certainly does not look good in terms of the amount of force that was used," Police Commissioner Charles Ramsey said. "But we don't want to rush to judgment." The officers were responding to a report of a shooting nearby, police said. Ramsey said Philadelphia officers have been on edge since last Saturday, when Officer Stephen Liczbinski was fatally shot with an assault rifle after a robbery in the city's Port Richmond section. One of the robbery suspects was fatally shot by police, another was arrested on Sunday and a third remains on the run.

"We want to look at the video. And I think it's important to remember that these individuals had been observed involved at a triple shooting at the time," Ramsey said. "There is also a lot of heightened emotions since Sgt. Liczbinski was murdered on the streets just Saturday." Liczbinski was the third officer slain on duty in the city in the last two years.

A relative of one of the suspects in the video, Dwayne Dyches, called a lawyer afterward. Lawyer D. Scott Perrine said his client suffered a welt on his head the size of a baseball and that one of his legs was seriously injured. Perrine said he now also represents the other two men in the car, Brian Hall and Pete Hopkins, but he did not know the extent of their injuries. The lawyer said he did not know what preceded the traffic stop in the city's Hunting Park neighbourhood, but that the video shows an unjustified police beating.

"It clearly shows a lack of any reasonable investigation before these police yank these individuals out of the car and take turns delivering blows," Perrine said. "This is a time for a thorough investigation to see what it is that happened here. The question is 'Did they have probable cause?"' Perrine said that police told him all three men would be charged with aggravated assault.

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The FLDS case falls apart

Hundreds of children have been traumatized merely on suspicion

An arrest warrant has been dropped for a man thought to be the husband of a teenage girl whose report of abuse triggered a raid on a polygamous sect's Texas compound, authorities said Friday. A Texas Department of Public Safety spokesman would not say why the warrant was dropped for Dale E. Barlow, 50, who lives in Colorado City, Ariz. Barlow has denied knowing the 16-year-old girl who called a crisis center. The girl reported that she was a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints and that she was beaten and raped at the sect's Eldorado ranch.

An investigation led to the April 3 raid, in which state welfare workers took 463 children living at the Yearning For Zion Ranch. A boy was born to one of the sect's mothers Tuesday; he and the other children remain in state custody. Authorities have not located the 16-year-old girl and are investigating the source of the call. Public Safety spokesman Tom Vinger would not say when the warrant for Barlow was dropped, only that "it is no longer active."

Rob Parker, an FLDS spokesman, said the dropped warrant shows the weakness of the state's case against residents of the ranch. "I think that's just one more piece of evidence that the whole basis on which this raid was premised was unfounded and was inadequately checked out, to the formulation of what basically amounted to an army that went in there and took their children," Parker said.

The phone number used to call the crisis center is the same one once used by a Colorado woman, identified as 33-year-old Rozita Swinton of Colorado Springs, accused of making previous false reports of abuse. Investigators have not said whether Swinton made the call to Texas authorities, though Vinger said she is "still considered a person of interest." "There is an investigation centering on that," Vinger said. "We have quite a bit of evidence that still needs to be analyzed."

A judge has ruled that children removed from the ranch should stay in state custody until all can have a hearing. Child welfare officials told the judge the children were living in an authoritarian environment that left girls at risk of sexual abuse and raised boys to become sexual perpetrators.

The FLDS is a group that splintered from the Mormon Church, which does not recognize the sect and disavows polygamy. In Utah, members of the polygamous church have asked the state's governor to intervene in its fight with Texas authorities over the custody the children. A letter written by FLDS elder Willie Jessop says Texas officials are rejecting Utah-issued birth certificates and other documents as "fake."

The letter asks Gov. Jon Huntsman to exercise his executive authority to assist in protecting the civil rights of native Utahns and FLDS members. FLDS parents claim they have been denied their due process by the Texas courts. "Without your leadership and personal intervention in this matter, the parental rights of every Utah family is at risk," Jessop wrote. Huntsman spokeswoman Lisa Roskelly said the governor has been in contact with Jessop and was reviewing his request.

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4th Amendment Security

When members of the National Transportation and Safety Department inspect one's luggage at the airport one ought to seriously wonder if they are breaching the 4th Amendment to the Constitution of the United States. The 4th Amendment reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

According to this amendment American government officials must obtain a search warrant authorized by an American court upon the presentation of evidence showing probable cause and describing specifically the individuals to be searched, the place to be searched, and the property to be seized.

Every time an inspection is done, never is there a warrant issued. Some will argue that these searches are not unreasonable; that they are for the passenger's own protection against a terrorist commandeering an airliner. However, unless the issue as to why the disaster of 9/11 occurred, real security will never be obtained. It has been since 9/11 that government inspections of personal luggage began with earnest.

The 4th Amendment does not apply to private companies such as airlines, just government officials. The reason is since an airline is a private company, it can make any rules it wishes. Through the free market, customers (airline passengers) choose to decide which airline they fly. If they feel more secure in flying an airline that inspects their luggage they may. If not, they choose an airline that does not inspect luggage prior to boarding. The point is the airline decides how it wants to operate its business and the customer chooses which business practices it likes most, not government officials.

Free enterprise is not government officials making the rules. Rather free enterprise is private individuals making the rules while government officials are prevented from forcing individuals to close their business unless they committed a crime, such as fraud, murder, and the like. When markets are controlled by government officialdom, the law must be followed. In a free market, the customer gets to decide whether a business is exercising good business practices.

Because government is force, government can and does force individuals to do any activity it requires. Private companies and individuals cannot. This is the reason for the Constitution, particularly the 4th Amendment; to restrain the power of government officials from just opening up an individual's suitcase without a properly issued warrant. The right to security means the right to keep private one's financial papers, books, and property, including travel records, medical records, fingerprints, photos, e-mail, phone calls, or DNA, and not have to surrender them on a whim to any government official without proper authorization. In other words it is the government official that must have proper papers, not the individual.

The 4th Amendment is based upon the old common law maxim: "Every man's house is his castle. Even though the winds of heaven may blow through one's home, the king (government official) cannot enter it without a warrant." This right to security was claimed by the founders against the "writs of assistance" of general warrants that allowed government officials to engage in fishing expeditions in searching an individual's premises to entrap him.

It is not the right of property that is being protected by the 4th Amendment. Rather it is the right to legally obtained property. Every individual possesses the three great rights, the right to one's life, the right to one's liberty, and the right to one's legally obtained property. These three rights are so bound together as to be essentially one right. To give an individual his life, but deny him his liberty is to take from him all that makes his life worth living. To give one his liberty but take from him his property, which represents his liberty, is to still leave him a slave.

One ought to know under what authority government officials can rummage through one's luggage or purse without a proper warrant. In a free society property is to be inviolate and government is instituted to protect the three great rights of every individual.

The purpose for which the 4th Amendment was written is to protect every individual from the use of force upon him by his government officials when those government officials need information. Government officials are servants in a free society, not rulers.

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British judges condemn ‘foul play’ on adoptions

Two senior judges have strongly criticised a local authority that forced through the adoption of a baby girl against the wishes of her father. Lord Justice Thorpe accused East Sussex County Council of being determined to have the child adopted “by means more foul than fair”, while Lord Justice Wall accused it of “disgraceful” conduct. He ordered that copies of their ruling, handed down at the Court of Appeal yesterday, be sent to all family judges and every adoption agency in the country as a warning that the wishes of both parents had to be taken into account in care proceedings.

The case involved a child, known as J-L, who was adopted earlier this year. She was born in November 2006 after a casual relationship between her mother and father, known as MC. He only knew that he had a daughter after the local authority contacted him last summer to tell him care proceedings were under way and asked for a DNA test. The mother had been living with her baby daughter in a special unit, but had abandoned the baby there. The local authority recommended adoption and placed J-L with foster parents in the meantime.

The father said that he was unable to take part in the initial care proceedings because he was in hospital after a heart attack. When he discovered that adoption plans were well advanced, he went to solicitors who immediately contacted the local authority to try to stop them. However, his intervention through a solicitor’s letter was ignored and never recorded formally at subsequent meetings. The local authority then allowed the adoptive parents to begin to look after the baby girl the day before the father’s legal case went to court. A further attempt by him to stop the adoption was blocked by the council using the 2002 Adoption and Children Act. Yesterday’s ruling was in response to the father’s appeal on grounds of a breach to his human rights.

“The council’s failure to answer that letter and subsequent placement on the eve of the hearing give rise to the clearest inference that the council was out to gain its ends by means more foul than fair,” Lord Justice Wall said. “There are many who assert that councils have a secret agenda to establish a high score of children that they have placed for adoption. When such suspicions are rife, a history such as this only serves to fuel public distrust in the good faith of public authority.” However, he said, it was “with regret” that the appeal court had to conclude that the local authority had acted in accordance with the 2002 Act, which was compatible with human rights laws. “There has been a travesty of good practice which the 2002 Act happens to permit,” Lord Justice Wall said.

“In my judgment, the answer to this case is not to allow the appeal, but for this court to ensure, insofar as it can, that the conduct of this local authority is not repeated elsewhere. The agency, I am satisfied, quite deliberately set out to prevent the father from being heard. No other inference can be drawn for its conduct.”

Government ministers and senior social workers have been forced to defend the adoption system in recent months against allegations that too many babies and young children are being taken from their parents and adopted. Local authorities have been under immense pressure to increase the number of adoptions in their area in order to qualify for hundreds of thousands of pounds of extra funding. The number of babies and young children adopted each year has trebled from 810 to 2,300 in the past decade. Those targets have just been scrapped. The two judges said yesterday that this case would fuel suspicion that there was “a secret agenda” on adoption.

Lord Justice Wall suggested the father consider judicial review. His lawyers said last night that they would be seeking legal aid to pursue his case. Jon Davies, of Families need Fathers, said the judgment recognised that both birth parents should be given the chance to play a role in their child’s life. “Adoption agencies can no longer ignore a father who might wish to care for his child. We hope this will also apply to grandparents,” he said. “Yet again, the secrecy of family law has led to a personal tragedy. Who will explain this to the child when they ask why their father wouldn’t look after them?”

East Sussex County Council said: “We are pleased the court confirmed that we were legally entitled to do what we did. We are, however, very concerned about the comments made by the court and we will carefully review how we exercised our duties in this case and examine our procedures in light of what the judges have said.”

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Rape disgrace in India

A 40-year-old British woman denounced the four-month battle - marked by intimidation, harassment and the "woeful" inadequacy of the British High Commission - that she endured to secure the conviction yesterday of a man who raped her. Parbhat Singh, 32, the owner of the Pardeshi guesthouse in Udaipur, was sentenced to 21 years in prison for forcing his way into the freelance journalist's room and then raping her on the night of December 23.

The woman, who asked not to be identified, made a scathing attack on the local authorities and community for harassing and intimidating her so much that the trial was almost as traumatic as the rape. She accused defence lawyers of intimidating, mocking and manhandling her in court, and her own lawyers of verbally abusing and even sexually harassing her. "Of course, I am happy that the man who raped me is behind bars," she told The Times. "But I only won because I could spend 25,000 pounds, take four months off work and resist all the harassment and intimidation. An Indian woman would not stand a chance."

She also accused the British High Commission of providing "woefully inadequate" information and support. Her claim echoed criticisms from the mother of Scarlett Keeling, 15, a British girl who was raped and murdered in the southwestern state of Goa two months ago. "While I was appealing for help, Gordon Brown was in Delhi meeting a women's empowerment group and yet I was unable to get support from my own Government," she said. The High Commission, which sent a representative to Udaipur twice at the start of the trial, responded by saying that it had provided consular assistance to an extremely high standard.

The woman, who has been in contact with The Times since January, said that her ordeal began when Singh brought extra blankets that she had requested to her room. He forced his way in, pushed her on to the bed and raped her with such brutality that she passed out momentarily and suffered convulsions and blood loss over the next few days. When she went to the police, she was forced to write a statement while Singh sat beside her. She underwent a medical examination in a maternity ward as mothers gave birth around her and the ward head called her a whore because she was unmarried but not a virgin. "That was almost as traumatic as the rape itself," she said.

When the case began in a "fast-track" court, the judge denied her an interpreter and defence lawyers surrounded her repeatedly, laughed at her and pushed her around. At one point, Rajendra Singh Haran, a defence lawyer, put an arm round her waist and said: "You sound like you know what you're doing. I'll come to you for sex lessons afterwards." One junior member of her own legal team asked her about oral sex repeatedly and offered to come to her hotel room. Throughout the trial, local people approached her almost daily to threaten and cajole her into dropping the charges. Several local hotels refused to allow her to stay. "The community appeared to be prepared to go to any lengths. They just thought, `You're white, you're a tourist, you'll be gone in two weeks', " she said. She said she believed that she had won the case only because of an honest judge and a sympathetic police chief.

The National Crime Records Bureau says that rape is the fastest-growing crime in India. There were 19,348 cases reported in 2006, a 22 per cent increase over 2005. Women's rights groups say that thousands more are not reported and the conviction rate, although rising slowly, still averages only 27 per cent.

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Hard lemonade, hard price

Dad's oversight at Tigers game lands son in foster care

If you watch much television, you've probably heard of a product called Mike's Hard Lemonade. And if you ask Christopher Ratte and his wife how they lost custody of their 7-year-old son, the short version is that nobody in the Ratte family watches much television. The way police and child protection workers figure it, Ratte should have known that what a Comerica Park vendor handed over when Ratte ordered a lemonade for his boy three Saturdays ago contained alcohol, and Ratte's ignorance justified placing young Leo in foster care until his dad got up to speed on the commercial beverage industry. Even if, in hindsight, that decision seems a bit, um, idiotic.

Ratte is a tenured professor of classical archaeology at the University of Michigan, which means that, on a given day, he's more likely to be excavating ancient burial sites in Turkey than watching "Dancing with the Stars" -- or even the History Channel, for that matter. The 47-year-old academic says he wasn't even aware alcoholic lemonade existed when he and Leo stopped at a concession stand on the way to their seats in Section 114. "I'd never drunk it, never purchased it, never heard of it," Ratte of Ann Arbor told me sheepishly last week. "And it's certainly not what I expected when I ordered a lemonade for my 7-year-old."

But it wasn't until the top of the ninth inning that a Comerica Park security guard noticed the bottle in young Leo's hand. "You know this is an alcoholic beverage?" the guard asked the professor. "You've got to be kidding," Ratte replied. He asked for the bottle, but the security guard snatched it before Ratte could examine the label.

An hour later, Ratte was being interviewed by a Detroit police officer at Children's Hospital, where a physician at the Comerica Park clinic had dispatched Leo -- by ambulance! -- after a cursory exam. Leo betrayed no symptoms of inebriation. But the physician and a police officer from the Comerica substation suggested the ER visit after the boy admitted he was feeling a little nauseated. The Comerica cop estimated that Leo had drunk about 12 ounces of the hard lemonade, which is 5% alcohol. But an ER resident who drew Leo's blood less than 90 minutes after he and his father were escorted from their seats detected no trace of alcohol. "Completely normal appearing," the resident wrote in his report, "... he is cleared to go home."

But it would be two days before the state of Michigan allowed Ratte's wife, U-M architecture professor Claire Zimmerman, to take their son home, and nearly a week before Ratte was permitted to move back into his own house. And if you think nothing so ludicrous could happen to your family, maybe you should pay a little less attention to who's getting booted from "Dancing with the Stars" and a little more to how the state agency responsible for protecting Michigan's children is going about its work.

Almost everyone Chris Ratte met the night they took Leo away conceded the state was probably overreacting. The sympathetic cop who interviewed Ratte and his son at the hospital said she was convinced what happened had been an accident, but that her supervisor was insisting the matter be referred to Child Protective Services. And Ratte thought the two child protection workers who came to take Leo away seemed more annoyed with the police than with him. "This is so unnecessary," one told Ratte before driving away with his son. But there was really nothing any of them could do, they all said. They were just adhering to protocol, following orders.

And so what had begun as an outing to the ballpark ended with Leo crying himself to sleep in front of a television inside the Child Protective Services building, and Ratte and his wife standing on the sidewalk outside, wondering when they'd see their little boy again.

Child Protective Services is the unit of the Michigan Department of Human Services responsible for intervening when someone suspects a child is being abused, neglected or endangered. Its powers include the authority to remove children from their homes and transfer them to foster parents who answer only to the state. By law, CPS officials are forbidden to discuss the particulars of any investigation. But Mike Patterson, Child and Family Services director for the Wayne County district that includes Comerica Park, said that in general his agency's discretion is limited once police obtain a court order to remove a child from the parental home -- usually authorized, as in Leo's case, by a juvenile court referee responding to a police officer's recommendation. "Once the court has authorized a child's removal," Patterson told me, "we cannot return the child to the parental custody" until the court has OK'd it.

But that doesn't explain why CPS refused to release Leo to the custody of two aunts -- one a social worker and licensed foster parent -- who drove all night from New England to take custody of their nephew. Chris Ratte's sisters, Catherine Miller and Felicity Ratte, left Massachusetts at 10:30 the night of the fateful lemonade purchase after the police officer who'd reluctantly requested a removal order told Ratte the state would likely jump at the chance to place Leo with responsible relatives. But when the two women arrived at the CPS office early Sunday, a caseworker explained they would not be allowed to see Leo until they had secured a hotel room.

The sisters quickly complied. But by the time they returned to CPS around 10:30 a.m., their nephew had been taken to an undisclosed foster home, where he would remain until a preliminary court hearing the following afternoon. By that Monday, April 7, when Ratte and his wife returned for a meeting with Latricia Jones, the CPS caseworker assigned to their case, no one in the family had been able to talk to Leo for a day and a half.

At a hearing later that day, Jones recommended that Leo remain in foster care until she had completed her investigation, a process she estimated would take several days. It was only after the assistant attorney general who represented CPS admitted that the state was not interested in pursuing the case aggressively that juvenile referee Leslie Graves agreed to release Leo to his mother -- on the condition that Ratte himself relocate to a hotel. Finally, at a second hearing three days later, Graves dismissed the complaint and permitted Ratte to move home.

Don Duquette, a U-M law professor who directs the university's Child Advocacy Law Clinic, represented Ratte and his wife. He notes sardonically that the most remarkable thing about the couple's case may be the relative speed with which they were reunited with Leo. Duquette says the emergency removal powers of CPS, though "well-intentioned" are "out of control and partly responsible for the large numbers of kids in the foster care system," which is almost universally acknowledged to be badly overburdened.

Ratte and his wife have filed a formal complaint with the CPS ombudsman's office. "I have apologized to Leo from the bottom of my heart for the silly mistake that got him into this mess," Ratte wrote in the complaint. "But I have also told him that what happened afterward was an even bigger error, and I would like to be able to say to him that institutions, like people, can learn from their mistakes."

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No jail time for murder????

And some say Texas is punitive!

A Hidalgo County jury on Monday gave a McAllen man probation for killing his neighbor after he thought he was having an affair with his wife. Jurors sentenced Antonio Saldana of McAllen to 10 years probation. Saldana is a 47-year-old elementary school janitor. He testified during his trial that the victim continually taunted him causing him to snap. Saldana offered an apology after the sentencing. [Big of him!]

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British babysitter has murder conviction quashed

More overconfident medical guesswork

A babysitter sentenced to life for the murder of her neighbour’s two-year-old son was released from prison yesterday after the Court of Appeal declared her conviction unsafe and ordered a retrial. Suzanne Holdsworth, 37, a mother of two who has spent three years behind bars, was driven away from Low Newton prison in Co Durham with a blanket over her head.

Lord Justice Toulson, Mr Justice Aikens and Judge Michael Baker, QC, granted her conditional bail after ordering a new trial over the death of her neighbour’s son, Kyle Fisher. At her trial at Teesside Crown Court, Ms Holdsworth was accused of repeatedly banging Kyle’s head against a wooden banister. She was said to have “snapped” while minding Kyle at her home in Hartlepool, while the child’s 19-year-old single mother was having a night out. She was jailed for life and told that she must serve at least ten years before she could apply for parole. Ms Holdsworth has consistently denied injuring the child and claimed that he had suffered a fit as they sat watching television.

The prosecution case was that the boy died from a fatal brain swelling, or oedema, caused by a blow or blows of significant force. Jurors were told that the impact on his head was similar to being thrown from a car at 60mph. Kyle was taken to hospital after the injury, in August 2004, and died two days later.

During her appeal, which was opposed by the Crown, Ms Holdsworth’s lawyer, Henry Blaxland, told the judges that the doctors who gave evidence at trial “got it wrong” and “collectively failed to diagnose” that the child had a “highly unusual brain”, with abnormalities that predisposed him to epilepsy. Fresh evidence established that there was a reasonable possibility that the child suffered a prolonged epileptic seizure, he argued. The opinion of experts called on behalf of Ms Holdsworth was that Kyle’s condition, including an injury to the orbit of the right eye suffered in an accident a year before his death, predisposed him to epilepsy.

Overturning her conviction, Lord Justice Toulson said it was the court’s view that if the fresh medical evidence had been given at her trial it might reasonably have affected the jury’s decision to convict. He said that Ms Holdsworth’s conviction “must be judged unsafe”. “Conclusions of medical experts on the cause of an injury or death necessarily involve a process of deduction, that is inferring conclusions from given facts based on other knowledge and experience. But particular caution is needed where the scientific knowledge of the process or processes involved is, or may be, incomplete.” He added: “As knowledge increases, today’s orthodoxy may become tomorrow’s outdated learning. Special caution is also needed where expert opinion evidence is not just relied upon as additional material to support a prosecution but is fundamental to it.”

After the hearing, Ms Holdsworth’s partner of 19 years, Lee Spencer, a lorry driver, said: “She is a wonderful person and she is a wonderful mother. Children come first in her life. To say she put a child’s head into the banisters at 60mph is absolutely ridiculous.” Ms Holdsworth’s solicitor, Campbell Malone, said: “She’s obviously very relieved at the outcome and understands it is the necessary first stage in the process of clearing her name.”

Kyle’s family said in a statement that was issued through Cleveland Police: “All we have ever wanted was to know the truth about what happened to Kyle. Since his death our lives have focused around the case. Not one of us has been able to move on. Today’s decision has brought all the heartache back. However, we will fully co-operate in the preparation for the retrial.”

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FLDS and common law marriage

Googling around, I found a web page from the Travis Country, Texas, Domestic Relations department (bureau? agency?), detailing the requirements for common law marriage in Texas. So far as I can tell, an FLDS couple meets those requirements, provided that the woman was his first wife and old enough to legally marry him. The page claims that being in a common law marriage has the same effect as an ordinary marriage. If so, the assertion by the Texas authorities that the couples were not legally married looks distinctly shaky.

[After I posted this, someone in a Usenet discussion pointed out a provision in the family code that prohibits persons under 18 from entering into a common law marriage. I don't know how that applies to someone who entered into it in another state and then moved to Texas.]

The Texas authorities claim that, out of 53 girls 14-17, 31 either are pregnant or have had at least one child--a way of putting it that obscures the fact that only two are actually pregnant. The age of consent in Texas is 17, so a 17 year old girl can be pregnant without any law having been violated. The minimum legal age for marriage (with parental consent) is 16, so if there was a legitimate marriage, a sixteen year old girl can be pregnant without any law having been violated. It sounds from the page I found as though a common law marriage counts.

The minimum marriage age was raised from 14 to 16 only three years ago. So a woman who is currently 17 might have been legally married at 14 and had one or more children by now.

There is a further point worth making here. A lot of the support for the attack on the FLDS comes from the widely held view that the normal pattern is for girls to be married off to older men shortly after they reach puberty and promptly start having babies. It is hard to see how that can be true if, as the Texas authorities have admitted, only two girls out of 53 in the 14-17 year age group were pregnant. And if that picture is false, that undercuts the whole argument for the extraordinary treatment they have been subjected to.

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Dallas man freed by DNA testing after 27 years in prison

Bad eyewitness identification again. A big risk for blacks

James Lee Woodard could have been out of prison long ago, had he just confessed to a parole board that he was guilty of killing his girlfriend in 1980. But the convicted Dallas man eventually stopped attending those hearings rather than admit to something he said he didn't do. Instead, he waited 27 years until a judge on Tuesday made him the nation's longest-serving inmate to be freed as a result of DNA testing. "It says a lot about your character that you were more interested in the truth than your freedom," state District Judge Mark Stoltz told Woodard after making his ruling, which must be formalized by an appeals court or a pardon from Gov. Rick Perry.

Woodard, jailed since New Year's Day 1981 after his girlfriend was raped and murdered, became the 18th person in Dallas County to have his conviction cast aside. That's more than any other county in the nation, according to the Innocence Project, a New York-based legal center that specializes in overturning wrongful convictions.

Wearing a purple shirt and tie with a black sport coat, Woodard stepped out of the courtroom and raised his arms to a throng of photographers. Supporters and others in a crowded hall outside the court erupted in applause. "I thank God for the existence of the Innocence Project," Woodard, 55, told the court. "Without that, I wouldn't be here today. I would be wasting away in prison."

Overall, 31 people have been formally exonerated through DNA testing in Texas, also the most in the U.S. That does not include Woodard and at least three others whose exonerations are not yet official. Like nearly all the exonorees, Woodard maintained his innocence throughout his time in prison. But seven letters to police and prosecutors, six writs with appeals courts and two requests for DNA testing went nowhere. Eventually, he was labeled an abuser of the system, according to the Innocence Project. "On the first day he was arrested, he told the world he was innocent ... and nobody listened," said Jeff Blackburn, chief counsel for the Innocence Project of Texas.

Blackburn and prosecutors hailed Tuesday's hearing as a landmark moment of frequent adversaries working together. Since the DNA evidence was tied to rape and Woodard was convicted of murder, Innocence Project attorneys had to prove that the same person committed both crimes. They said they couldn't have done that without access to evidence provided by Dallas County District Attorney Craig Watkins' office. "You've got to have very good lawyers with a lot of experience and skill ... working on both ends of this case, hard," Blackburn said. "And you've also got to have government power behind what you do."

Under Watkins, Dallas County has a program supervised by the Innocence Project of Texas that is reviewing hundreds of cases of convicts who have requested DNA testing to prove their innocence. While the number of exonerations on Watkins' watch continues to grow, he said this one was a little different. "I saw the human side of it, and seeing the human said of it just gives you more courage to advocate for issues like this," said Watkins, who had breakfast with Woodard on Tuesday morning. "It gives me that resolve to go even further to find out who (the killer) is so that we can get him into custody."

Woodard was sentenced to life in prison in July 1981 for the murder of a 21-year-old Dallas woman found sexually assaulted and strangled near the banks of the Trinity River. He was convicted primarily on the basis of testimony from two eyewitnesses, said Natalie Roetzel, the executive director of the Innocence Project of Texas. One has since recanted and the accuracy of the other has been questioned, Roetzel said.

Four men previously exonerated in Dallas County cases attended the hearing for Woodard, who was presented $100 by one of them. Woodard said his family was "small and scattered," although he pointed out a niece in the courtroom. He said his biggest regret was not being with his mother when she died while he was in prison. "I can tell you what I'd like to do first: breathe fresh, free air," Woodard said during a news conference in the courtroom after the hearing. "I don't know what to expect. I haven't been in Dallas since buses were blue."

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