Saturday, October 20, 2012

From the department of "You're kidding me," frivolous prosecutions

The enforcement of the law in an impartial manner is not an easy thing. Given our differing opinions, it is probably impossible. We do not want to give those charged with enforcing law or regulations, right down to the school administration level, tyrannical power to do just whatever they want to ensure order just because they are following a literal interpretation. On the other hand, we do not want to tie their hands by fear of reprisal or too many or just plain vague rules such that they cannot enforce the law at all. They have to pick and choose what they use their resources on and almost no one is ever going to be happy with it.
Like most government in this world, as with almost everything we put our mind's to, you often end up with a mishmosh of a system that works only by the good faith and common sense of those in charge.  And, of course, whether that is the case or not must be a matter of opinion. Sometimes, probably usually, in an effort to be even-handed and apply the law impartially, the dichotomy ends up with prosecutions that make the rest of us just groan and think - "WHAT are you doing?" I am not even talking here about times where the prosecutor is motivated by political factors and just persecutes the defendant(s) like in the Duke rape case, a debacle where the prosecutor ended up disbarred from practicing law and convicted, and the accuser, though shown to be a fraud out for financial gain, walked away free and unmolested due to a combination of racial favoritism and misplaced pity, after nearly destroying the lives of a few boys who had with her on the wild side but hadn’t assaulted or coerced her in anyway. We can only be glad there that the attorney general of North Carolina bravely stepped in and stopped the prosecutor from completing his disgusting political act. I don’t have the solution for any of this. Perhaps there is none, but constant two steps forward, one step back muck ups. Maybe two steps back.   

The following selections are no less stupid than the Duke rape case, if short of an accusation of a heinous crime, but may have permanently stigmatized or ruined the lives of the accused victims.
Sexual assaults gone wild

In the past century we’ve seen tremendous gains by women and children in protecting them from sexual aggression. For the most part, this is a good thing.  On the other hand, in order to remedy some very unfair conditions, there is also no doubt that it has also resulted in ridiculous decisions that make us shake our head and sometimes a feeling that adults in general and men in particular are inherently suspect of wrongdoing.  A friend of mine pointed out one day to me that the scene in many movies where the man suddenly grabs a woman and kisses her, leading to cheers and tears in the audience, had been replaced by men being paralyzed by fear of being accused of sexual assault. I think perhaps he exaggerates, as by the same signs and vibes that have always existed, most people seem to manage to figure out who is interested and who is not. But, in order to provide a level of safety for people, some of those in authority have just gone way overboard.  Below are a couple of cases where accusations of sexual assault seem just insane.
In February, 2004 a school boy named Stephen Fogelman, a third grader, chased a girl on the playground. Without being in a position to know anymore, my daughter being a grown woman, I suspect his happens quite a bit on playgrounds without untoward incident, and is laughed at or ignored by adults in supervision. But, it didn’t this day. When Stephen caught the young girl he kissed her on the cheek, which certainly seems affectionate, rather than evil, and definitely not sexual. The do-gooders in school, rather than reprimand him, suspended him for a day for . . . on grounds of sexual harassment. He was nine years old. According to his parents, he didn’t even understand why he was suspended. According to the girl’s mother, her daughter had been frightened by the incident, but she herself found the charge of sexual harassment a little "awkward." 

This reminds me of a story an elderly friend tells. When he was young the boys in his neighborhood would chase the girls their age and, if they caught them, tickle them with a feather on the end of a stick. We are talking 1940s here.  One day, he and his friend caught one of the young girls and were tickling her (he was the chaser; his friend the tickler).  But, another girl had escaped them and was up on a hill, completely out of any danger of being caught. She called down to her friend – “If you wait for me, I’ll wait for you too.” In other words, she had every intention of being caught. It is possible to imagine that nowadays, those two boys from another era, too shy or  too young to even want to try to kiss the girl, could have been thrown out of school, scandalized or even prosecuted for tickling. Such is our world.
This was hardly the first time something like what happened to young Fogelman has occurred. In 1996, Jonathan Prevette, North Carolina, got suspended for doing the same. He was six years old and the young girl he kissed had asked him to do it. The charge . . . again, sexual harassment.

I’m not going to minimize here the sexual harassment many women actually suffer. I’ve seen some myself, even seen friends, grown married women, cry over the misplaced sexual advances or kidding of their stupid bosses or co-workers who thought their attentions were wanted. When I was a young working man, I tried hard to navigate that line between flirtation and even occasionally voluntary sexuality with offending anyone. I grabbed and kissed a few women too up to my 20s and early 30, even occasionally co-workers. Sometimes more, but then definitely only when it was requested.
I have no doubt that if brought into full light on a public stage, some of my acts would be viewed by many as harassment, though it certainly seemed to me that none of it was unwelcome and usually directly invited. I remember an awkward situation in college that is laughable in retrospect for its innocence, but at the time, upsetting to me.  I was a freshman in my college ratskeller and was just holding hands with a couple of girls in my class. Everyone seemed very happy.  I had my first girlfriend for a month or so, and was, not surprisingly starting to feel like maybe I should not have been holding hands with one, never mind two girls, but wasn’t really sure.  In retrospect, d'uh, but I was just 17 and it was still kind of new to me. The next day both girls approached and shocked me when one stood by as the other chastised me for what we had all been doing together.  I felt ashamed and embarrassed and of course peeved that since we all had been involved, that I was somehow the bad guy. It was hardly a ménage a trois.   Later than day, the girl who had stood mute came over and told me to ignore our other friend; that she had enjoyed it herself  (I think she was inviting more, but I ignored that out of respect for my girlfriend) and that the other girl was just feeling guilty because she had a boyfriend. I felt a lot better. But, had the other girl gone to the school authorities – would I have been charged with harassment or assault?  Maybe not in the 1970s when it happened, but nowadays, in some schools absolutely. I definitely would be suspended, if not thrown out. Crazy? Yes.

Zero tolerance
When my daughter was in junior high a policy of zero tolerance for fighting was announced. If you were in a fight, you were suspended, even if not the aggressor. As a parent, I found this intolerable. Though it seemed to me highly unlikely my daughter would get in a fight I told her that if she had to defend herself or a friend I would neither punish or be disappointed in her, and would defend her legally. It never happened, but I am still offended by the idea that in order to rid the school of bullying and violence, it would go so far as to add to the victims' injuries by requiring that they either just cover up while being attacked up rather subject themselves to official punishment.  In fact, that does happen.  

Though I do approve of reasonable efforts to quash bullying and violence at school, a modicum of common sense should still be necessary.
Almost exactly two years ago an honor student, Alyssa Cornish, with an otherwise impeccable record, and who had never been in trouble, was suspended for an entire school quarter for firing a weapon on school property. Though only in the fifth grade, she was not even permitted to step on school property. And that seems appropriate except . . . . screeeeeeechh – it wasn’t a real gun. It was a toy gun. There is something called Airsoft where they shoot soft pellets at each other and this was an Airsoft rifle. Alyssa was at school on a weekend and the kids were playing with the gun. One boy was shot in the back, but, really, so what? When I was in school I was punched, knocked over, had my books stripped onto the floor and was otherwise accosted -- and that was by my friends. Bear once body checked me into my locker so hard I'm lucky I am here to tell about it.  In Alyssa's case, she merely fired the toy gun up in the air once. What a monster.

Her mother describes this as emotionally devastating to her child and her family. I would guess so. Of course, I’m sure there are people out there who would even agree with the suspension.  But, seems to me insane and that the people running the school should not be doing so due to lack of common sense. In 1964 Potter Stewart, a Supreme Court justice, gave himself a little notoriety when he wrote in a decision that hard-core porn was hard to describe, “but I know it when I see it.” I’ve learned that this line was actually suggested to him by a law clerk, Alan Novak, but the point is,  just because we don't know where to draw a line doesn't mean we need to sweep in those clearly outside of it. The same could probably be said about violence. We know it when we see it. To suggest Alyssa violated a zero tolerance for violence by firing a toy gun in the air on a weekend is just insane, as insane as suggesting that a teacher who puts his hand on a little girl’s shoulder is assaulting her, or that two kids bumping into each other in the hallway is a fight. Even a dog knows the difference between being kicked and being tripped over. Apparently, some school officials don’t. There is a line somewhere upon which I acknowledge it must be very hard to tell. But, this wasn’t it. Not by a long shot.
Super kid crushed beneath heels of do-gooder authorities

I remember reading a year or so ago an article by NY Times columnist Nick Kristof about super kids in Africa, who underwent enormous ordeals on a daily basis to take care of their families while at the same time doing things like walking ten miles back and forth to school. It was very touching and reminded me of how ridiculously fortunate we are. Apparently though, being a super kid is not allowed in America because you might break a rule.
Diane Tran was is a 17 year old girl who is just a terrible person. I mean, yes, she is an honor student taking a number of advanced level courses, and sure, she works a full time and part time job in addition to school to support her brother and sister because their idiot parents divorced and, apparently, from what I can tell, abandoned them. She occasionally misses school because of exhaustion.

So, the system worked perfectly. They added to her financial woes when she missed school and PUT HER IN JAIL FOR A DAY.  Better had the judge should put himself in jail for two days on the grounds of being an idiot. I really don't care that he has warned her in the past she couldn't miss school. I understand that one of her employers is trying to raise money for her.  I hope they raise money for someone to run against the judge.
Permitting us to death

I was shocked earlier this year to learn that in rural Virginia, where I was living at the time, a couple of teenage boys couldn’t go down to the river and fish after dinner because they didn’t have a permit. Seriously, is that what our way of life is coming down to? Paralysis through revenue raising. It really got out of hand down in Georgia last year, when police shut down a lemonade stand run by some teenage girls because they hadn’t paid for the $50 a day or $180 a year permit for running a food establishment. I think of this every time I pass a lemonade stand now - those poor kids don't know what is going to happen to them.
The three girls, Kasity Dixon, 14, Tiffany Cassin, 12, and Skylar Roberts, 10, all related, were reportedly yelled at by the police and terrified enough so that they were afraid to go outside their houses afterwards, at least for a while. They had been trying to earn a little money to go to a water park. It is nice to know that a local farmers market and the water park itself have allowed the girls to operate their sell lemonade there so they can reach their goal.

The local police department refused to comment, as they were investigating a criminal matter. Yikes.
Adult animal predators

Of course, what happened to these children, while upsetting, is not as serious as it is for adults who are prosecuted for behavior that may be technically illegal, but only if you are a tyrannical monster.
For example, poor Nancy Black. Now, I love animals. Of course, I also eat them, which some day in the future may seem as monstrous as having slaves. I don’t mind laws protecting animals from cruelty, but I have grown up a little since I held my sister off with a knife because she wanted to step on some ants swarming in our kitchen.  Like with everything, there has to be a some rule of reasonableness. That line was crossed with federal prosecution of a marine biologist starting in 2005.

I learned in a George Wills article about the plight of Nancy, age 50, a marine biologist who was doing some whale watching.  Someone on her crew whistled to some whales to get their attention  and someone else then complained to the National Oceanic and Atmospheric Agency that this might be “harassment,” an “environmental crime.”  How would you like to be charged with whistling at a whale? Actually, that's not what happened, but apparently it is conceivable. When the agency requested a video of it Black sent them one. But, she edited it by highlighting the whistling, so they could easily find it. She was indicted for allegedly making a “material false statement” to federal investigators, a felony.

Too add insult to injury, about a  year later the feds raided her home, which has to be terrifying, and took her stuff.  She is also charged with feeding whales when her and her crew watched whales feeding on their prey. Her friends and colleagues were told not to talk to her by the feds and she lost one of her best friends. Defending herself has taken her life savings. For what? I think there is a pretty good chance she is not going to be convicted, but, folks who obviously have nothing important to do and too large a budget, have helped ruin her life.

Why we don't get involved

The following example of a nurse in Texas illustrates why so many people don't like to get involved. Because when you do, the system chews you up and spits you out. As a lawyer, one of the hardest things I've had to do is to get decent people who are witnesses to show up to court to testify, because they are afraid of what will happen to them or just controversy. I don't really blame them, as they are unfamiliar with the system and experience tells them that they will get savaged for being good citizens (except, I do blame the man who called me a Nazi because I subpoenaed his wife, a witness).
A few years back I was in Chicago's O'hare Airport at 5:30 in the morning, and, in my stupor, was still able to hear a TSA warning that we should report anyone we saw leave any luggage anywhere that may have been playing as frequently as every 2 minutes. To my surprise, as I waited on line, I saw a man, who ironically looked very much like the terrorist in the movie True Lies roll his carriage brim full with luggage (I counted 13 bags) over to the door and deliberately leave one of the suitcases there before coming back. It was hard to believe that despite the constant warning someone would innocently do this. I decided, as unlikely as a terrorist attack at such an early hour seemed, to follow instructions. Why else would they repeat it so frequently, if they did not want us to do it?  A few minutes later I was directed to another line, and when I got there, I dutifully reported what I saw and pointed out the suitcase to the employee speaking to me.

The TSA reacted like the trained super agents they are. They immediately investigated with great dedication by searching - ME! Yeah, I was thoroughly searched. When we were done and I was going on my way, I could still see the suitcase sitting by the door, apparently not a concern to any of them. But, the warning droned on. Fortunately, it was just an odd event and nothing blew up.

What happened to me was, of course, a pittance, a few minutes out of my life. But, in 2010, a jury had to exonerate a nurse, Anne Mitchell, who wrote a letter to the medical board complaining about a doctor, Rolando Arafiles, who was allegedly pushing the herbal products he was selling on his patients. It didn't work out the way Anne thought it would. When the doctor received notice of the complaint from the board, he had his friend, the local sheriff, do an investigation of those he claimed were harassing him.  Anne and her friend, Vickilyn Galle, who to some degree helped her, were not only fired, but charged with felonies for misusing government information, despite the protests of the medical board that you can't do that with whistleblowers, that they needed to be provided with such information and that there was no evidence of a crime anyway.  The prosecutors eventually dropped the case against her friend, but Anne had to undergo a trial. A national nursing association raised money to help her with her legal fees. It made national news and the jury took very little time acquitting her.  I and many others would have been livid had she been convicted. Naturally, she could have gone to jail for years and underwent a lot of stress. This one also had a happy ending with respect to both the prosecutors and a civil lawsuit. Per
". . . In August 2010, Winkler Hospital settled its part of the civil suit for $750,000 and paid a $7,500 fine imposed by the Texas Department of State Health Services for inadequately supervising Arafiles and firing Mitchell and Galle.

In June 2010, the Texas Medical Board charged Arafiles with witness intimidation in addition to improperly treating nine patients. A Winkler County grand jury subsequently indicted him, former Winkler County Memorial Hospital administrator Stan Wiley, Sheriff Robert Roberts, and County Attorney Tidwell for retaliation and misuse of official information. In March 2011, Wiley pleaded guilty to abuse of official capacity and was sentenced to 30 days in jail. Wiley's plea agreement includes a pledge to cooperate with prosecution of the other three. In June 2011, Sheriff Roberts was convicted and was sentenced to spend 100 days in jail, pay a $6,000 fine, and serve four years of probation. The conviction means he will automatically be removed as Winkler County Sheriff and must surrender his peace officer's license. Also in June, Arafiles was charged with aggravated perjury for lying at Michell's trial. When asked how Roberts had obtained the names and contact information of patients who had complained about Arafiles to the Texas Medical Board, Arafiles said he didn't know even though he had given Roberts the information. In October 2011, Tidwell was convicted In November 2011, but is appealing his conviction. Arafiles pleaded guilty to one count each of misuse of official information and retaliation and was sentenced to 60 days in jail and ordered to pay a $5,000 fine. He also surrendered his medical license ."  I took out the footnotes, but it seems like a well researched website.
So, it is a case where common sense won out, this time not just against stupidity, but corruption. I don't. That's all nice for those of us playing at home, but the nurses still had to go through hell because of a system that allows such corrupt practices that seemed clear as day to anyone who learned of it.  Obviously, there was wrongdoing and malice here. My question is, where was the judge and state in this well publicized matter? Why was this women allowed to be tortured so? Were I the judge, I would have dismissed the matter outright. Were I the governor, I would have summarily pardoned them. I'm not sure of the attorney general's authority in this situation, but he/she should have quashed it, if possible.  I seriously doubt, other than the accused's oppressors, anyone would have thought it was favoritism in either case.

The Big Sum Up
There are, of course, cloudier cases, and probably overwhelmingly prosecutions are just, even if we have too many laws. Sometimes I will think something should so obviously be one way and am shocked to learn that others just as fervently believe the other. Some times I find that these differences are influenced by gender  The issue of religious accommodation comes to mind too, and I hope to write about that soon. But, with respect to the cases I mention above, I can't think of anyone who disagreed that they were just wrong, that at least some discretion should have told the prosecution or administration that it was acting too literally and punishing someone who just should have been left alone. This is, unfortunately, the friction that having rule of law brings about. Those charged with enforcing it are going to want to be above suspicion or criticism that they played favorites or drew the wrong line (except, such as in the Texas case, where there is prosecutorial malice), while the rest of us want some kind of obvious rule of reason.

If you have your own story, feel free to "charm in," as my insignificant other likes to say.


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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .