No Justice For All

June 25th, 2009

Last week’s 5-4 Supreme Court ruling that convicted inmates do not have the constitutional right to DNA testing demonstrates once again that we have separate and unequal justice systems operating in the United States.

Forty-seven states and the federal government have passed laws providing access to post-conviction DNA testing. Only Alaska, Massachusetts, and Oklahoma, do not have laws providing access for post-conviction DNA testing.

Thus, if you live in one of these three states and happen to be convicted of a crime, or if your lawyer doesn’t request a DNA test before you are convicted, you’re simply out of luck. Whether you may be entirely innocent of the crime and someone else may be guilty is irrelevant At least that’s the view expressed by 5 members of the highest court in the land – and supposedly some of our best thinkers. The ruling overturned the 9th Circuit Court of Appeals verdict, which recognized a right to such testing under the due-process clause of the Fifth Amendment.

What’s even more stunning about this decision is that there is wide spread agreement among law enforcement officials that DNA testing is a powerful tool in establishing both the innocence and guilt of those who perpetrate violent crimes such as rape and murder. The FBI has established a nationwide data bank for the DNA samples of offenders.

The Innocence Project estimates that modern DNA testing has exonerated 240 people nationwide — at least 17 of these were sentenced to death.

Common sense dictates that if we have the technology and testing available to cheaply and definitively determine guilt or innocence, it is the court’s duty to conduct the test, especially when you consider that if an innocent person is convicted of a crime, a guilty one is still at large.

No innocent person should be incarcerated because they live in a state that doesn’t allow for mandatory DNA testing. All accused, whether convicted or just charged, should have access to DNA testing that would provide equal justice.

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Domestic Terrorists

June 17th, 2009

Remember when The Department of Homeland Security issued its April 7 report warning law enforcement officials about a rise in “rightwing extremist activity.” The report warned that the economic recession, the election of America’s first black president and the return of a few disgruntled war veterans could increase the number of hate crimes. The nine-page document entitled, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” was sent to police and sheriff’s departments across the country.

Remember when Homeland Security Secretary Janet Napolitano was forced to issue an apology after conservatives vehemently objected to the report and claimed that the government considered anyone a terrorist threat if they opposed abortion, owned a gun or were a returning war veteran.

Remember when the Obama administration issued a warning about left-wing extremists last January and conservatives strenuously objected. Okay, that’s a trick question. I don’t remember hearing objections from conservatives and neither do you because it never happened. As a matter of fact, I don’t remember liberals objecting to the report either. Both reports, by the way, were initiated during the administration of George W. Bush.

The Homeland Security Office of Intelligence and Analysis defines “rightwing extremism in the United States” as including both racist or hate groups, and also groups that reject federal authority in favor of state or local authority. “It may include groups and individuals that are dedicated to a single-issue, such as opposition to abortion or immigration.”

Now, following the recent killings in Little Rock, Arkansas, Wichita, Kansas and at the U.S. Holocaust Memorial Museum in Washington D.C., Attorney General Eric Holder called for new hate crimes laws to stop what he called “violence masquerading as political activism.” Holder wants Congress to pass an updated version of hate crimes legislation in order to more effectively prosecute those who commit violent attacks based on ethnicity, gender, disability or sexual orientation.

His call comes at a time when there has been a surge in white supremacist activity. 2007 statistics compiled by the FBI indicate that hate crime against, blacks, Hispanics, Jews, Arab-Americans and Muslims have risen since 2001, as has crimes perpetuated against lesbian, gay, bisexual and transgender individuals.

The Southern Poverty Law Center reported in February that the number of hate groups has risen by more than 50 percent since 2000. It attributed the growth mainly to fears about nonwhite immigration, but said Obama’s election and the downward economy also were contributing factors.

It appears that the Justice Department and federal law enforcement may finally be willing to act against right wing extremists. Still, I believe we have far more to fear from domestic terrorists than we do from al Qaeda and Osama Bin Laden.

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Law of Unintended Consequences

June 2nd, 2009

Sending or distributing explicit photos of a child under 18 is illegal in many countries, including the United States. It is also illegal to send such photos to a minor even if both parties consent to it. Now, in a growing number of cases across the U.S., teenagers are being arrested on charges of child pornography for “sexting”, which is the practice of sending nude or semi-nude images of oneself to others via mobile phones.

Take the case of Phillip Alpert of Orlando, Florida. According to the Orlando Sentinel, Alpert’s girlfriend “sexted” him naked pictures of herself, even though he didn’t request them. After they broke up, he stupidly mass e-mailed the photos to get back at her. Alpert, 18, was convicted of transmission of child porn and will be labeled as a “sex offender” until he is 43. He lost friends, was kicked out of school, and can’t live with his father because his father’s house is near a school.

Some contend that we have a moral obligation to charge “sexting” teens with the most serious offense possible under the law because sending naked pictures of underage kids is usually considered child porn. Others contend they have few options since states have no laws that apply specifically to “sexting”.

And having one’s private pictures distributed among classmates or uploaded on to social-networking websites can lead to tragic consequences, as in the case of Jessica Logan, an 18-year-old from Ohio, who took her own life after pictures she sent of herself to her boyfriend ended up in the hands of fellow pupils.

But a child pornography conviction as a result of “sexting” often carries far heavier penalties than other sexual offenses. Even if a juvenile receives no jail time, he or she has to register as a sex offender for 10 years or more. The federal Adam Walsh Child Protection Act of 2007 requires that sex offenders as young as 14 register.

Many parents, school officials, police and prosecutors have begun asking whether branding “sexting” teenagers as sex offenders and pedophiles – and potentially creating many more sex offenders – is the best way to discourage teens from “sexting”.

Lawmakers in Vermont considered a bill that would make it legal for teenagers 18 and under to exchange explicit photos and videos of themselves. Under the current law, teenagers could be prosecuted as sex offenders if they get caught sending graphic sexual images of themselves, even if it was consensual.

Child porn is about the abuse and exploitation of minors by adults. In many cases, sexting” teens are both perpetrators and victims, and sometimes harm themselves. It makes little sense to compound the act of harming themselves with a criminal prosecution and conviction.

Perhaps it’s time that our laws caught up with technology.

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Sick Child or Sick Parent

May 22nd, 2009

When a child is very sick, most parents never hesitate to take the child to a doctor for treatment. But what if your 13-year-old Daniel Hauser, who is diagnosed with Hodgkin’s lymphoma, and your mother decides, based on her religious beliefs, that alternative medicines would be better than chemotherapy for treating your life threatening condition?

Fortunately for Daniel Hauser, a Minnesota judge saw the issue differently. He ruled that Daniel was “medically neglected” and consequently was in need of child protective services and chemotherapy. The judge found that, under the specific circumstances, the state had shown a compelling interest in “the life and welfare of Daniel” sufficient to overcome all of the strong religious and familial constitutional rights of both Daniel and his parents.

Unfortunately, Daniel’s mother fled with him, and is believed to be seeking a “natural cure” for her son’s disease in Mexico. Doctors in Minnesota give Daniel less than a 10% chance of surviving without chemotherapy.

As many as 40 states now carry an explicit exemption from prosecution for child abuse or neglect for parents who forgo medical treatment for their children on religious grounds and instead seek “treatment…through prayer”. Those championing “parental rights” argue that Colleen Hauser can do whatever she wants with her son.

But that attitude can lead to tragic consequences, as in the case of Madeline Neumann. The 11-year-old Wisconsin girl died of diabetic ketoacidosis — an illness authorities contend could have been readily treated —because her parents insisted her body was a battleground in a spiritual war between Jesus Christ and the forces of Hell. Only by resisting worldly medicine, they believed, could she be saved. Even after her death, her parents insisted that Madeline would come back to life. Today, a Marathon County jury found Madeline’s 41-year-old mother guilty of second-degree reckless homicide.

A similar case occurred in Oregon where 15-month-old Ava Worthington died of bronchial pneumonia and a blood infection that went untreated. The state medical examiner’s office contended that she could have been treated with antibiotics. Her parents, who attempted to treat their helpless daughter with prayer, were subsequently indicted on charges of manslaughter and criminal mistreatment.

We live in the 21st century and not the Dark Ages. Parents cannot be allowed to rely on religious extremism when it comes to their children’s health and welfare. They should not be able to starve their children, abuse them, or kill them, which is essentially what Colleen Hauser is doing. Yes, there are anecdotal instances of “natural cures” and “miracles”. But those are the exceptions, not the norm. Not seeking sound medical treatment when your child’s life is at stake should never be an option. It should be a crime.

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The True Costs of War

May 15th, 2009

Earlier this week, Sgt. John M. Russell, a communications specialist with the 54th Engineering Battalion at Camp Liberty outside Baghdad, was arrested by military police after the shooting and killing two staff officers from an Army reserve unit in Indianapolis and three other soldiers. Russell was suffering from the effects of post-traumatic stress disorder or PTSD. The term was coined in mid 1970 as a result of the problems that were being experienced by Vietnam veterans. PTSD has also been recognized in the past as stress syndrome, shell shock and battle fatigue.

According to government figures, nearly 20% of the more than 1.7 million who have served in Iraq and Afghanistan are believed to have symptoms of anxiety, depression and other emotional problems. Some studies show that about half of those who need help don’t seek it. The Veterans Affairs Department has reported that 60,000 of the nearly 120,000 Iraq and Afghanistan veterans, who have received a preliminary mental health diagnosis, have been diagnosed with PTSD. Mental health experts attribute the large numbers and dramatic increases in the last few years to more troops serving their second, third or fourth tours of duty; a factor they say dramatically increases stress. Lengths of tours were also extended from 12 to 15 months during the “surge”, another factor that caused extra emotional strain.

While there are tremendous emotional costs to Russell and his family and to the families of the victims, Nobel Prize winning economist and Colombia University professor Joseph Stiglitz, together with Linda Bilmes, a Harvard budget expert, have calculated that the costs for the Iraq war extend well beyond the economic value of lost and shattered lives.

When a young soldier is killed in Iraq or Afghanistan, his or her family receives a U.S. government check for $500,000. While no amount can truly compensate the families, this sum is far less than the typical amount paid by insurance companies for the death of a young person in a car accident. In areas such as health and safety regulation, the US Government values a life of a young man at the peak of his future earnings capacity in excess of $7 million. Using this figure, Stiglitz and Bilmes estimate the cost of nearly 4,300 American troops killed in Iraq at $28 billion. If a soldier is wounded or disabled, the pay seldom provides adequate compensation for the soldier or their family. In one out of every five cases of seriously injured soldiers, someone in their family has to give up a job to take care of them. Due to improvements in body armor, there have been an unusually high number of soldiers who have survived major wounds such as brain damage, spinal injuries and amputations. Recent figures show that more than 31,000 military personnel have been wounded in Iraq and 320,000 of those have brain injuries.

Stiglitz and Bilmes predict the cost of lifetime care for the thousands of troops who have suffered brain injuries alone could run as high as $35 billion. Factoring in increased defense spending as a result of the war, veterans’ disability payments and demobilization costs, the economists predict the budgetary costs of the war could surpass $3 trillion dollars. The link http://costofwar.com/ takes you to the National Priorities Project website, which calculates the dollar costs for the two wars by the second.

While the wars in Iraq and Afghanistan may mercifully end in the next decade, the psychological emotional and disability costs for those wars will continue long into the future. 

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The Zodiac Killer

May 2nd, 2009

When Deborah Perez, a 47-year-old real-estate agent from Southern California, came forward this week with the claim that her adoptive father, Guy Ward Hendrickson, who died in 1981, was the infamous Zodiac killer responsible for five murders in the Bay Area during the late 1960s, it once again ignited the flame of controversy and speculation that has kept this case burning for decades. What’s even more remarkable was Perez’s assertion that she was present during at least one killing and even scribbled some of the taunting notes the Zodiac sent to the press and the police.

The Zodiac killer claimed to have killed thirty-seven people, but police consider five to be actual victims. He usually targeted young couples in secluded areas and killed them using both guns and knives. After each crime, the Zodiac wrote letters to local newspapers that sometimes included physical evidence from the crimes. He also sent four cryptograms to newspapers, but only one was decoded.

Police investigated over 2,500 potential suspects throughout the decades, including the Unabomber, Ted Kaczynski, yet the murders were never officially solved. There were a few suspects that stood out, but the forensic technology of the times was not advanced enough to nail any one of them conclusively.

The primary suspect was Arthur Leigh Allen, a child molester who died in 1992 at age 58 from failing health. Allen was fingerprinted, subjected to a polygraph, searched, interrogated, and induced to give handwriting samples. Still, there was no conclusive evidence implicating him in any of the murders.

The matter seemed settled until 1986 when author Robert Graysmith wrote his best seller ZODIAC, which concluded that Allen was the Zodiac killer. Now in its twenty-ninth printing, the novel was the source for the popular David Fincher movie released in 2007, which starred Mark Ruffalo, Robert Downey Jr., and Jake Gyllenhaal as Graysmith.

Police continued to investigate Allen a year before his death, although he protested his innocence. After his death, investigators even retrieved brain tissues for DNA testing. The technology at the time failed to prove anything.

Deborah Perez said she became aware of the Zodiac case in 2007, when she saw an episode about it on “America’s Most Wanted”, and started thinking that her father was involved.

San Francisco police said they would attempt to identify and if possible match the description given by Deborah Perez to the Zodiac killer.

Though many believe that Perez is lying and just trying to get publicity, she has passed psychological exams, and her handwriting samples have been confirmed by an “expert document examiner” from Los Angeles, who, coincidentally, is also an executive producer and narrator of a coming documentary about the case.

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Tortured Logic

April 23rd, 2009

When the United States ratified the Convention Against Torture in 1994, it agreed to criminalize torture and to provide civil remedies for torture victims. Torture was defined as the infliction of “severe” pain and suffering with the intention of doing harm for a specific purpose, such as obtaining information during interrogations, carried out by “a public official or other person acting in an official capacity.”

In August 2002, Jay Bybee, head of the Justice’s Office Of Legal Counsel, and now a federal judge appointed for life to the U.S. 9th Circuit Court of Appeals, wrote a 50-page memo that essentially said the president could authorize torture even though our laws and treaties prohibited it. The memo asserted that the president could act however he saw fit during war, even if U.S. law and international treaties prohibited such conduct. “The president enjoys complete discretion in the exercise of his commander in chief authority,” the memo stated, and “Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

Bybee’s tortured logic completely contradicts the fact that The Convention Against Torture provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” And Common Article 3 of the Geneva Conventions provides that the rights and duties concerning fundamental humane treatment apply whether a person detained is a prisoner of war, unprivileged belligerent, terrorist or ordinary civilian.

Now we learn from the Senate Intelligence Committee’s report that as national security adviser to Bush, Condoleezza Rice verbally approved the CIA’s request to subject Abu Zubaydah to waterboarding in July 2002, before Bybee’s memo was even written. Last fall, Rice told the Senate Armed Services Committee only that she had attended meetings where the CIA interrogation request was discussed and asked for the attorney general to conduct a legal review. Rice used the infamous Alberto Gonzales “I don’t recall” defense in her testimony, and conveniently omitted her direct role in approving the program in her written statement to the committee. It’s clear that Rice essentially lied to the committee, which given her track record, should come as no great surprise.

Rice approved the use of torture despite the fact that Philip Zelikow, a former top lawyer in the State Department, wrote a memo strenuously objecting to the legal opinions laid out in the torture memo. The White House responded by attempting to destroy all copies of the memo Zelikow authored.

Conservatives like former Vice President Dick Cheney claim that by releasing the memos, we are no different than a Banana Republic. The memos clearly show that Bush administration officials authorized the use of torture and committed war crimes. If Rice, Cheney and others in the administration are not prosecuted for their crimes, then Cheney’s characterization of the U.S. will be accurate.

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Snipers

April 14th, 2009

While writing my latest police procedural, “The Black Minute”, which will be released in September, I did quite a bit of research on snipers. I recalled some of that research after hearing the remarkable account of the three Navy Seal snipers who simultaneously fired three shots, killing the three pirates who were holding Captain Richard Phillips hostage off the coast of Somalia.

Probably the most famous sniper in United States history was Carlos Hathcock. During the Vietnam War Hathcock had 93 confirmed kills. Confirmation of sniper kills was difficult at the time because all kills had to be confirmed by a third party. This was easier on a battlefield but problematic in a jungle setting. Also, snipers usually worked in pairs (shooter and spotter) and often didn’t have a third party present.

One of Hathcock’s legendary accomplishments was shooting an enemy sniper through his scope, hitting him in the eye and killing him. This scene has played out in a number of Hollywood movies featuring snipers and can be directly attributed to Hathcock’s unbelievable accomplishment. Hathcock and his spotter were tracking the enemy sniper in the jungle near the firebase Hathcock was operating from. The sniper had already killed several Marines and was believed to be stalking Hathcock. When Hathcock saw a flash of light off the enemy sniper’s scope in the bushes, he fired at it, shooting through the scope and killing the sniper. Hathcock concluded that the only possible way he could have put the bullet straight down the enemy’s scope and through his eye would have been if both snipers were zeroing in on each other at the same time and Hathcock fired first. Given the flight time of rounds at long ranges, both snipers could easily have killed one another. The enemy rifle was recovered and the incident documented by a photograph. Hathcock also held the longest recorded sniper kill on record at 2,347 yards until March of 2002 when Master Corporal Rob Furlong, a sniper from Newfoundland, Canada, registered a confirmed kill of 2,657 yards or 1.51 miles during the war in Afghanistan.

Despite Hathcock’s notoriety, he ranks fourth in the number of kills behind U.S. Marine Corps snipers Eric R. England with 98 confirmed kills and Chuck Mawhinney with 103. Mawhinney had another 216 kills that are listed as “probables” by the U.S. Marine Corps. The rifle that he used during his service in Vietnam is now on display in the Vietnam Gallery of the National Museum of the Marine Corps. United States Army sniper Adelbert Waldron’s 109 confirmed kills are the highest for any American sniper in history.

But those numbers pale in comparison to Simo Hayha, the WWII sniper from Finland. Nicknamed “White Death” because of his white camouflage suit and his ability to shoot in sub-zero temperatures, Hayha was credited with 505 confirmed kills of Soviet soldiers and 542 if the unconfirmed deaths are counted. The unofficial Finnish figure from the battlefield places the number of Hayha’s sniper kills at over 800. Besides his sniper kills, Hayha was also credited with over two hundred kills with a submachine gun, bringing his credited kills to at least 705. Even more remarkable, all of his kills were accomplished in less than 100 days.

A Hollywood movie called Enemy at the Gates was made about Vasily Zaitsev, the famous Soviet sniper, who fought in the Battle of Stalingrad. Zaitsev killed 242 Germans during the battle. The Soviet Union also used women for sniping duties, including Lyudmila Pavlichenko, who was credited with 309 confirmed kills. She was one of 2,000 women snipers trained by the Soviets during WWII, and one of the 500 who survived.

Senior Airman Jennifer Donaldson from the Illinois Air National Guard was the first woman to be trained at the only U.S. military sniper school open to females. She graduated April 14, 2001 from the National Guard Sniper School’s first countersniper course for Air Guard security force personnel. Donaldson was eligible to attend the school because women belong to Air Guard and Air Force security forces. That is not the case in the Army and the Marines because snipers are part of those infantry forces, and women cannot be in the infantry.

Successful snipers are unique individuals who possess the skill and temperament to perform under extreme stress levels. We can be thankful for the training and skill exhibited by the Navy Seal snipers and for all those whose dedication and training have saved the lives of countless soldiers and non-military personnel like Captain Richard Phillips.

 

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Throw-Down Guns

April 2nd, 2009

You’ve seen it in the movies and on television; you’ve read about it in numerous crime novels. A cop mistakenly kills a suspect he or she thought was armed. It’s a cop’s worse nightmare. Then, to cover their mistake, the cop plants a throw-down gun on or near the suspect.

Officer Jason Andersen, a Minneapolis police officer, is facing a wrongful death lawsuit alleging that he deliberately planted a gun on 19 year-old Fong Lee after fatally shooting him eight times in July of 2006 during a foot pursuit. Andersen claimed Lee was evading him and was waving a gun while not stopping for over a block while the officer chased him after interrupting a drug deal. While eight shots into the victim seems excessive considering Lee never got off a shot with the gun he was carrying, a grand jury cleared Andersen of any criminal wrongdoing and the department’s IA division found he didn’t violate any procedures. Andersen was awarded the Medal of Valor for bravery.

However, evidence filed in a wrongful death lawsuit last Monday by the victim’s family alleges that the gun found two feet from Lee’s body had been in police possession for nearly two years before the shooting. The suit claims that contradictory police reports, all eyewitness accounts and a security tape from the elementary school near the playground where the shooting occurred, prove that Lee wasn’t carrying a gun.

Six days after Lee was killed, the Russian-made .380 gun that was recovered near his body was identified as the same gun that was found in a snowbank two years earlier after it was reported stolen during a burglary in North Minneapolis. The gun was never returned to the owner after the trial of the accused burglars. In the initial report after the Lee shooting, the serial number on the gun found near Lee’s body and the serial number on the gun found after the burglary were deemed a match. But another report dated several days later, claimed the gun recovered from the snowbank after the burglary was actually a FNH pistol with a different serial number. Police allege that the pistol was never removed from the property room and never returned to the owner.

Rich Hechter, the Lee family attorney, says in court documents that the planted gun was taken from the evidence room at the 4th precinct, the same station officer Andersen worked out of.  Experts Hechter hired, say the video shows Lee was not carrying a gun during the chase. Police claim the videotape appears to depict Lee carrying something in his hand.

I could clearly see the gun and shadow of the gun in Officer Andersen’s hand in the videotape. I certainly couldn’t see anything in Lee’s hand. I would hope that if this case goes to trial that the videotape could be enhanced to truly judge if Fong Lee was carrying a gun.

You can watch the videotape and judge for yourself by following the link:

http://www.startribune.com/local/42292347.html

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Murder-Suicide

March 27th, 2009

A few weeks ago I wrote about Verne Gagne, the former University of Minnesota and professional wrestler, who was accused of throwing a 97-year old man to the floor while both men were residing in a nursing home in Bloomington, Minnesota. The man later died from complications from a right hip fracture due to the fall. Though the death was ruled a homicide, charges were never filed in the case because both men suffered from Alzheimer’s disease and did not remember what had happened. Given the sharply rising numbers of seniors afflicted with the disease and the fact that this was not the first reported homicide involving patients with Alzheimer’s, I concluded that we would probably see more Alzheimer-related homicides as the population ages.

This past Monday, Claire Erickson, an 83 year-old Hudson, Wisconsin man, shot his 81 year-old wife, Betty, to death and then committed suicide. Betty was suffering from the debilitating effects of Alzheimer’s disease. While homicide-suicide is rare among older people, according to researchers, the numbers are increasing. In Wisconsin, 132 couples have died from homicide-suicide since 2000, while 90 have died in Minnesota over the same period of time. Although people 65 and older comprise about 12% of the U.S. population (and growing), they account for 16% of the suicide deaths.

Men are most often the perpetrators. The woman is rarely a willing participant and is usually killed in her sleep. While surviving children often view the crime as an act of love, many researchers believe that it’s done out of desperation. Men mistakenly believe they are acting with mercy by putting the woman out of her misery. Usually they are ending their own misery. Unable to cope with the mounting responsibilities and health problems, the caregiver views murder-suicide as the only answer.

The Alzheimer’s Association in Minnesota has begun reaching out to more men by creating additional support groups. Legislation has also been proposed that would help to better assess the needs of people with dementia and their families.

Family members and friends should be aware of the warning signs that one partner may be contemplating murder-suicide, particularly if the couple has become more isolated, there’s talk of moving to a nursing home, health problems are increasing, or one or both partners are experiencing difficulty with eating, anxiety or depression. Experts suggest that if you feel that a family member may be considering murder-suicide, make certain all guns are removed from the house. It seems like a sensible suggestion, but, as in the case of Claire and Betty Erickson, one that is rarely considered.

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