OpenCDA

July 4, 2017

Not a Good Idea

Filed under: Probable Cause — Tags: — Bill @ 8:01 pm

DWI-blood-drawIn its Sunday skewspaper article very distastefully headlined Police Are Out for Blood, the Coeur d’Alene Press reported that Coeur d’Alene police officers are being trained and certified as phlebotomists so they can do field blood draws on persons suspected of driving under the influence of intoxicants.

OpenCdA has some concerns and questions we believe must be addressed by the Coeur d’Alene City Council before it applies its obligatory and ceremonial rubber stamp of approval to this proposed practice.

The skewspaper article failed to report what happens to the sample after it has been obtained by the officer.  Where and by whom is the actual analysis of the sample performed?  What will the Department’s policy be regarding timely delivery of the sample to the testing laboratory?

Of considerably greater concern is the skewspaper article’s implication that this policy and procedure is being proposed to circumvent an existing requirement that officer obtain a search warrant to perform a physiologically invasive, nonconsensual search of a suspect.  Our concern is prompted by these lines of the skewspaper article:

 

If an impaired motorist refuses to submit to a breathalyzer and police have probable cause the motorist is intoxicated, they must get a search warrant to draw blood at a hospital.

“Getting a search warrant takes a while,” Hagar said. “A lot of time, things are too busy and it takes a while.”

By reducing the time — getting a blood draw at the scene — police can get more accurate BACs, which can aid in prosecution, Hagar said.

If a search warrant is required now for a hospital phlebotomist to conduct a physically intrusive, involuntary, and nonconsensual search of the suspect’s body at the hospital, why won’t a search warrant also be required for a law enforcement officer to conduct a physically intrusive involuntary and nonconsensual search of the suspect’s body in the patrol car?

A reasonable inference from the article is that a suspect in the custody of a patrol officer in the field could be persuaded (coerced) into giving “voluntary, informed consent” for  a blood draw in the field.

We are also very concerned that some people are, to put it mildly, needle averse.  They may be able to tolerate a draw using a blood collection system composed of a multi-sample vacuum collection needle and a disposable tube holder in the hands of an experienced, non-threatening phlebotomist at the hospital.  The same equipment system in the hands of an arresting police officer begins to look more like a painful interrogation tool designed to elicit an involuntary admission or involuntary consent.

Are the police going to hold the suspect down while the newly-trained police officer draws blood if the suspect objects to the search?  How is that going to look on the video from the body camera?  Policy would mandate that from the beginning of the stop through the completion of the involuntary blood draw, there must be an unbroken,  clear, and intelligible video image with audio of the entire process.  Failure to rigidly adhere to the policy ought to administratively require the exclusion of all BAC evidence by the court in that case as presumptively involuntarily and illegally obtained.  In other words, before the evidence obtained from the blood draw is admitted, the court must require the state first prove the blood draw was lawful.  The audio-video evidence from the arresting officer’s body camera is the best way to prove that.

What’s next?  Police officers trained to catheterize suspects to obtain urine samples?  Officers trained to conduct colonoscopies to search for drug packets?

May 5, 2017

Nault Wrongful Death Lawsuit Complaint

Filed under: Probable Cause — Tags: , , , — Bill @ 9:45 am

DisingenuousAs reported in OpenCdA’s May 3, 2017, post entitled Be Strong and Take Courage …, family members of Reginald J. ‘Reggie’ Nault have filed a wrongful death civil lawsuit in Mr. Nault’s death.

OpenCdA has obtained a copy of the initial complaint for damages and demand for jury trial filed in Idaho’s First Judicial District Court on May 2, 2017, at 5:05 p.m.

In addition to identifying the plaintiffs and defendants specifically and individually by name and establishing the jurisdiction and venue of the Court, the complaint particularizes each specific allegation the plaintiffs believe they can prove at trial.

OpenCdA’s preceding posts concerning Mr. Nault’s death raised questions about the quality and timeliness of the Kootenai County Sheriff’s Office investigation and its unwillingness to release the investigative reports to the Nault family.  We also raised concerns about the conflict asserted by Kootenai County Prosecuting Attorney Barry McHugh when the ‘conflict’ attorney, Boundary County Prosecutor Jack Douglas’s press release stated, “However, based on my review of this event and applicable Idaho law, I have determined that no criminal act can be shown to be a direct cause of Mr. Nault’s death.  Therefore, charges will not be filed against anyone by my office.”  [emphasis OpenCdA’s]

Paragraph 2.20 and in particular its subparagraphs 2.20.a through 2.20.i in the complaint allege circumstances which, if sufficient evidence exists to show probable cause, would warrant the filing of some criminal charges.   Paragraphs 3.2.z  through 3.2.bb specifically cite Idaho statutes which plaintiffs believe were violated.

Even if we and our readers believe Mr. Douglas’s assessment of evidence and applicable law was appropriate when his office declined to file charges against anyone because no criminal act could be shown to be a direct cause of Mr. Nault’s death, the failure to explain why other possibly appropriate criminal charges were not filed certainly raises valid questions.

The public has a legitimate interest in examining the professional conduct of its elected officials.  The Sheriff and the Prosecuting Attorney are not exempt from that examination.

OpenCdA believes the evidence admitted in court in the wrongful death lawsuit brought by Reggie Nault’s family should contribute to the public’s assessment of the official performance of duties by Kootenai County Sheriff Benton Wolfinger and Kootenai County Prosecutor Barry McHugh.

Additionally, we believe that it will give the public the opportunity to assess the performance of the First Judicial District judge who ultimately hears the case.

To the extent that other elected officials not yet named in any complaint may have received some or all the results of the investigation while those same results were being withheld from the Nault family, we think those officials’ conduct and the conduct of the investigative information provider(s) are deserving of public scrutiny as well.

We hope that the public will pay close attention to the news coverage and reporting of this trial by local and regional newspapers and television stations.    We hope that the news media will carefully and thoroughly question and then timely, completely, and accurately report inconsistencies between the trial evidence and the public officials’ statements and characterizations of that evidence.

Finally, we hope that on his own initiative,  Idaho Attorney General Lawrence G. Wasden pays very, very close attention to the filings and evidence in this civil lawsuit.  His office has statutory jurisdiction as well as a duty and responsibility to investigate if the evidence presented in court reveals violations of state criminal law by county officers who hold elective office.   In this particular lawsuit, the county officers most directly involved who hold elective office would include Kootenai County Sheriff Benton Wolfinger, Prosecuting Attorney Barry McHugh, and Kootenai County Coroner Warren Keene.

May 3, 2017

Be Strong and Take Courage …

Filed under: Probable Cause — Tags: , , — Bill @ 7:25 pm

DisingenuousSeveral previous OpenCdA posts have commended the family of Reggie Nault for engaging a local attorney and pursuing the facts in Reggie Nault’s drowning death.

Melissa Luck, Assistant News Director at KXLY4 News in Spokane,  posted an online news story revealing that a wrongful death civil lawsuit was filed by the Nault family today, Wednesday, May 3.  According to her story, the lawsuit names as defendants the two other 16-year old boys in the boat as well as two adults who allegedly provided alcoholic beverages to the three boys.

OpenCdA concludes tonight’s admittedly incomplete post with the same words we used to end our first one on October 20, 2015:

As OpenCdA has often said, the Kootenai County justice rug has become lumpier and lumpier as incidents have been swept under it.  By engaging an attorney to monitor the investigation of Reggie Nault’s death and evaluate the results of that investigation, the young man’s family is honoring his life by using his death to keep a trained and watchful eye on those who might be tempted to lift the rug’s edge and sweep again.  The facts are the facts, and they will not change.

There can be no genuinely good outcome when a young person dies prematurely.  The closest thing to a comforting outcome is that the person’s family hopes others will learn from the facts of his death and use what they learn to help themselves and others avoid similar outcomes.

We think the Nault family’s action toward that end is honorable and commendable.

We will try to get a copy of the lawsuit’s complaint and post it here.

April 22, 2017

‘ALL’ ? Really?

Filed under: Probable Cause — Tags: , , , — Bill @ 7:39 am

DisingenuousSeveral earlier OpenCdA posts beginning with the one entitled ‘In Search of Facts’ on October 20, 2015, commended Reggie Nault’s family for engaging attorney Lee James to try and shovel the details of the investigation into Mr. Nault’s death from under the increasingly lumpy Kootenai County rug.

The headline of the article in today’s Coeur d’Alene Press says it all:   ‘Judge:  Release Nault Records‘.

As reported, First District Court Judge Rich Christensen has ordered Kootenai County Sheriff Benton Wolfinger to turn over ALL of the Nault records to Mr. Nault’s family.   Sadly, the Nault family had to get a court order to force Wolfinger to release the records.  Unsurprisingly, Kootenai County Prosecuting Attorney Barry McHugh sought to help Wolfinger keep information in the records from ever seeing the light of day.

There were some questions we would expect to have been fully and completely answered in the investigative reports prepared by the Kootenai County Sheriff’s Office investigators.  They include:

What adults were present on the boat and at the dock?  Whose boat was it?  Who was operating the boat?  What was the boat operator’s degree of impairment?  Or was the operator’s impairment even determined by Sheriff’s deputies?  What was the unexpurgated timeline of events surrounding the incident?  From the moment Mr. Nault went into the water, who did what and when did they do it?  Was evidence of alcohol consumption by minors concealed by the minors or any adults present?  If other crimes were committed which contributed to Mr. Nault’s death or which hindered the investigation into it, why were those crimes not charged by the Kootenai County Prosecutor or a ‘conflict’ attorney from another county?

Now we hope either or both our local and regional skews papers do their  job as (alleged) newspapers and file public records requests to examine ALL of the records Judge Christensen ordered to be released.   We would also hope that the papers publish complete and accurate stories that enable readers to fully evaluate the competence and performance of the County Sheriff and the County Prosecuting Attorney.

We’re not holding our breath on that.

In the past, both the Coeur d’Alene Press and The Spokesman-Review have appeared inclined to under-report stories revealing the job performance of public officials they favor in Kootenai County.

We think that in particular, both papers ought to look closely at the number and nature of ‘conflicts’ that Prosecutor Barry McHugh declares when he farms cases out to prosecuting attorneys in other counties.   That information is one of the valid job performance assessment tools available to voters.

We also think that the papers ought to look at the quality of the investigation done by the Kootenai County Sheriff’s Office.  A poor or incomplete initial investigation into an unattended death reflects as badly on a department’s leadership, supervision, and training as it does on the investigators who completed it.  At the same time, it is not unheard of in some law enforcement agencies to occasionally have investigators’  reports adjusted by supervisors in the interest of political expedience or out of consideration for the social standing of some involved.

As we did in our initial OpenCdA post on October 20, 2015, we once again sympathetically commend the Nault family for their decision and efforts to pursue the facts surrounding Reggie Nault’s death.   Unfortunately, it took an order of the Court to get it done, but we offer a heartfelt ‘Thank You’ to the Nault family and their attorney Lee James for fighting to get it.

January 13, 2017

What About The Public Interest?

Filed under: Probable Cause — Tags: , , , — Bill @ 7:04 am

Questions copy copyThe Coeur d’Alene Press published an article on Thursday, January 12th, headlined Nault’s Family Wants Answers.   The article’s lead read, “A year and half after a popular Coeur d’Alene High baseball player drowned in Lake Coeur d’Alene, his mother and sister still don’t know exactly what happened.”

Unfortunately, it was a typical Press “emotion” piece, an article more focused on telling the public how the Nault family feels rather than giving the Nault family or us substantive information.  It’s information the public needs to evaluate how well or how poorly the Kootenai County Sheriff Ben Wolfinger and the Kootenai County Prosecutor Barry McHugh are performing their official duties.

The Nault family is absolutely entitled to know the answers to the questions Mr. James posed in the article.

So is the public.  There is a valid  public interest in determining if Reggie Nault’s death was thoroughly and competently investigated and if all those who contributed materially to his death were prosecuted.  There is certainly a valid public interest in knowing if official favoritism was shown toward some who should have been prosecuted for incidental crimes (e.g., Destruction, alteration or concealment of evidence) but were not.

The county sheriff and the county prosecutor are elected officials.  The questions posed by the Nault family in Thursday’s article and the questions OpenCdA raised in our earlier posts in 2015 and 2016 are still valid.  It appears they’re also still unanswered.   The results of the Nault death investigation and any investigations into the related conduct of involved adults  and juveniles will allow the public to better evaluate the official performance of elected officials including the sheriff, the prosecutor, and judges.

Certainly the Nault family’s feelings are important. OpenCdA gives attorney Leland James respectful credit for pushing the feckless Coeur d’Alene Press to perform as a newspaper rather than the image protector of elected officials.

December 8, 2016

‘Warnings Unheeded: Twin Tragedies at Fairchild Air Force Base’

Filed under: Probable Cause — Tags: , — Bill @ 7:04 am

warnings-unheeded

On June 20, 1994, Dean A. Mellberg, a former US Air Force airman returned to Fairchild Air Force Base, Washington, with a rifle.  He specifically targeted Major Thomas Brigham, M.D., and Captain Alan Landon, Ph.D.  After entering the base hospital and killing his intended targets, Mellberg continued to shoot and kill everyone he could including eight year old Christin McCarron.  Mellberg’s mass murder attack was stopped only when he was shot and killed by Senior Airman Andy Brown, a security police officer assigned to the 92nd Security Police Squadron at Fairchild.

Then on June 24, 1994, a U.S. Air Force B-52H Stratofortress crashed at Fairchild Air Force Base while rehearsing maneuvers for an annual air show.  The B-52 was piloted by Lieutenant Colonel Arthur “Bud” Holland.  The crash killed Holland and three other crew members.

Aside from geographic coincidence, the two incidents had something else in common:  There had been many credible warnings that both Dean Mellberg and Bud Holland represented a serious, likely life-threatening danger to their fellow airmen.  The warnings had gone unheeded.

In his just-released book Warnings Unheeded:  Twin Tragedies at Fairchild Air Force Base,  (WU Press, Spokane, Washington, (c)2016 Andy Brown, ISBN 978-0-9978634-0-6,) author Andy Brown explains the unheeded warnings in a remarkably well-researched and very readable book.    If his book stopped there, it would be worth reading by every supervisor at every level of public service and private industry.  But Mr. Brown went further and revealed the personal challenges he faced in his own journey from Trauma to Recovery.   His revelation elevates the importance of his book to an entirely new level.

Andy Brown’s book has not received much national attention.  It should.  Warnings like the ones unheeded at Fairchild Air Force Base leading up to the events of June 1994 are not restricted to any particular institution or by geographic location.

Warnings Unheeded:  Twin Tragedies at Fairchild Air Force Base is available from Amazon.com.  It is also available from the Hayden Branch of the Community Library Network of Kootenai and Shoshone Counties in Idaho.

Author Andy Brown is scheduled to appear on Saturday, December 10, 2016, from noon until 2 p.m. at a book signing at Center Target Sports, 3295 E. Mullan Avenue, Post Falls, ID 83854.

September 10, 2016

Exceptional Police Work

Filed under: Probable Cause — Tags: , — Bill @ 12:13 pm

irvine-pd-patchAt a time when citizens throughout the United States are being propagandized by various media including the skews media to ridicule and deride law enforcement officers, it was not only refreshing but also inspiring to see the Los Angeles Times newspaper run its six-part series entitled ‘FRAMED – She was the PTA mom everybody knew.  Who would want to harm her?

The series highlights the exceptional and insightful work of the Irvine, California, Police Department.  It is worth noting that the Irvine officer who was first assigned the call was an experienced police officer, not a rookie.  The article rightly raises the question:  Would the outcome of this case have been different if a less experienced and less patient patrol officer had been the first to respond?

The series was written by LA Times staff writer Christopher Goffard.  Goffard’s bio states, “He shared in the 2011 Pulitzer Prize for the paper’s Bell coverage …”  Attentive readers may recall the Kootenai County connection to the Bell scandal which the LA Times reported and for which it was awarded the Pulitzer Prize.

The entire six-part series can easily be read in half an hour.  It’s worth the time.

September 9, 2016

Report: ‘Bringing Calm to Chaos’

Filed under: Probable Cause — Tags: — Bill @ 8:17 pm

farook-malik-copyOn December 2, 2015, Islamic terrorists Syed Rizwan Farook and his wife, Tashfeen Malik, attacked Farook’s office holiday party in San Bernardino, California, killing 14 and wounding 22. Farook and Malik were killed in a shootout with area law enforcement on the same day.

Now the US Department of Justice Office of Community Oriented Policing Services and the Police Foundation have released a 162-page critical incident report entitled ‘Bringing Calm to Chaos — A critical incident review of the San Bernardino public safety response to the December 2, 2015 terrorist shooting incident at the Inland Regional Center.’

It is a ‘lessons learned’ report that focuses specifically on the San Bernardino incident.  However, it has much broader applications to the range of active shooter and hostile events generally.  The report discusses leadership; command and control; planning and response; investigations; community engagements, relationships, and public information; and responder and victim welfare and mental health.

July 29, 2016

Deputies Won’t Be Charged in Yantis Shooting Death

Filed under: Probable Cause — Tags: , — Bill @ 9:45 am

19117510-mmmainIdaho Attorney General Lawrence Wasden reported today that there was insufficient evidence to file criminal charges against the two Adams County deputy sheriffs who shot and killed Council, Idaho, rancher Jack Yantis on November 1, 2015.

Here is a link to today’s Idaho Statesman story with more details.

Here is a link to all OpenCdA’s posts about the shooting.

June 20, 2016

NYPD Brass Arrested — Corruption

Filed under: Probable Cause — Tags: , — Bill @ 12:52 pm

NYPDCorruptAccording to a press release from Preet Bahrara, the US Attorney for the Southern District of New York, NYPD Deputy Chief MICHAEL HARRINGTON, Deputy Inspector JAMES GRANT, and Sergeant DAVID VILLANUEVA were arrested today, along with a Brooklyn-based man, JEREMY REICHBERG, on bribery charges.

“Harrington, Grant, and Villanueva were charged in Manhattan federal court with conspiring to commit honest services wire fraud for a bribery scheme involving the receipt of tens of thousands of dollars in meals, trips, home renovations, and other benefits in exchange for an array of official NYPD actions, including private police escorts, ticket fixing, and assistance in settling private disputes.  VILLANUEVA, formerly a supervisor in the NYPD’s gun licensing division, was charged in Manhattan federal court with bribery offenses in connection with his receipt of cash bribes to expedite and approve gun licenses.”

Here is a link to an Associated Press story which appeared in the San Diego Union-Tribune.  It was headlined NYC police officials charged in bribery corruption scandal.

The New York Daily News headline is more bombastic:  NYPD officials busted in corruption investigation took ‘substantial bribes’ from de Blasio fund-raiser, including hookers:  Criminal complaint.

For those readers wanting more specific details, here are links to the U.S. v. Grant Harrington Reichberg Complaint, the U.S. v. Villanueva and Lichtenstein Indictment, and the U.S. v. Ochetal Information.

The investigation and resulting criminal charges are relevant to those of us in northern Idaho.

The charges should remind us that law enforcement officers at all ranks are susceptible to bribes offered by people of wealth and influence.   The honest ones resist; the corrupt ones don’t.

In a state such as New York where restrictive laws make it nearly impossible for an average citizen to get one of the three types of concealed weapons permit, those extra-special friends of the law enforcement brass will have no difficulty at all securing one.  The Ochetal Information linked above describes how NYPD officials took bribes to make sure the “right” people got CWPs.

Finally, political party affiliation will not discourage an aggressive and honest US Attorney from pursuing some offenders.    Competent US Attorneys who pursue politically sensitive prosecutions without regard to political party influences and potential career-affecting consequences effectively insulate themselves from punitive dismissal.

US Attorneys who refuse to look at public corruption in their district only encourage it.

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