Garcia Not a Victim

Contra the Opinion of Utahns Against Police Brutality, Cop Killer Jose Angel Garcia Jauregui is Not a Victim of Such Brutality

By Ken K. Gourdin

The group Utahns Against Police Brutality was formed in the wake of high-profile incidents involving police use of force. Jose Angel Garcia Jauregui was shot and killed by police after he shot Utah County Sheriff Sergeant Cory Wride and Deputy Greg Sherwood, killing the former and gravely wounding the latter. In a recent rally sponsored by the group, Mr. Garcia was memorialized as “a victim of police brutality.”

Examining the logic underlying the group’s contention that Mr. Garcia was a victim of police brutality in a letter to the editor published March 10, 2016 in The Deseret News, I pointed out that if, indeed, that is true, that means that officers cannot and should not shoot back, even when they are under fire themselves; I pointed out that if, indeed, police cannot and should not shoot back even when they, themselves are under fire, that makes not only officers but all of us less safe; and I pointed out that calling Mr. Garcia a “victim of police brutality” cheapens the sacrifices of Deputy Sherwood, Sergeant Wride, and every other officer who has been hurt or killed in the line of duty. For my letter to the editor see here (last accessed March 30, 2016):

http://www.deseretnews.com/article/865649714/Police-brutality.html.

In on-line comments responding to my letter, one of my interlocutors implored me to “wait for an investigation” to be concluded before passing judgment. I responded:

I agree with your general contention that judgment should be withheld until all of the rel[e]vant facts are in, nor am I naive enough to believe that police brutality never occurs. That said, there is absolutely no disputing the fact that the shooting of Mr. Garcia is NOT [sic] a case of police brutality: He had already shot and killed one officer and shot and wounded another before he, himself, was shot and killed. With due respect, it appears that the only person on this thread who is unfamiliar with those relevant facts is you.

Another of my interlocutors opined that the alleged dangers faced by law enforcement often are overstated, that police often overreact to situations they face, and that officers ought to receive more deescalation training. With excerpts from this commenter in quotation marks, my responses follow the quoted material:

“Put in perspective a taxi driver or convenience store clerk is more likely to be shot at their job than a cop. [sic]” Even if true, that seems rather cold comfort to Nanette Wride and others who have lost loved ones in the line of duty.

“Due to the fear they feel in working with the public they [police] over-react to many situations.” Granting that proposition as true for the sake of this discussion (although I think it’s highly debatable), I’m unsure how police overreacted by shooting Mr. Garcia, since he’d already shot and killed one of their colleagues and had shot and wounded another.

“The public would be better served if officers would develop, and be trained in more de-escalation tactics.” De-escalation tactics are important, but I don’t see how they would have helped in this case. Mr. Garcia seemed determined to kill or to harm police officers no matter what: Sgt. Wride had stopped to help him.

I’m not naive enough to believe that police brutality never occurs. If procedures used in law enforcement training, investigation of use-of-force incidents, and (where necessary) prosecution of officers who engage in brutality or other impermissible conduct can be improved, let’s have a robust dialogue about how to do that.

Holding cop-killers such as Jose Angel Garcia-Jauregui up as alleged “victims of police brutality,” however, does nothing to further those aims.

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Attorneys and Judges are Held to Higher Standard

The Case of Terry Jackson Mitchell v. (Former Federal Prosecutor and Judge) Richard Roberts: On the Higher Standard to Which Attorneys and Judges are Held

By Ken K. Gourdin

Noted Utah defense attorney Greg Skordas recently published an Op-Ed in the Deseret News in which he discusses the evolution of sex crime laws in the state of Utah and the impact that evolution has had on defendants.  Terry Jackson Mitchell was friends with one of the African-American men shot by racist and murderer Joseph Paul Franklin in Salt Lake City in 1980.  The U.S. Justice Department sent Richard Roberts, then an attorney, to Salt Lake City to assist in Franklin’s prosecution.  Ms. Mitchell testified at Franklin’s trial, after which Roberts had an intimate relationship with the-then-16-year-old Ms. Mitchell (who says Roberts pressured her into being intimate with him), and that relationship now is the subject of litigation (a suit filed by Ms. Mitchell).

I previously commented on the tragedy weathered by Ms. Mitchell on the blog, and that post can be found here (this and all other links last accessed March 30, 2016): https://greatgourdini.wordpress.com/2013/07/08/spirits-and-violent-death/.  Mr. Skordas’s piece can be found at the following address:  http://www.deseretnews.com/article/865650998/The-evolution-of-Utahs-sex-crime-laws.html.  I commented on Mr. Skordas’s piece as follows:

From Mr. Skordas’s Op-Ed: “As an attorney, I applaud the fact that the Attorney General’s Office had the courage to take on this investigation, knowing that … the perpetrator is a man of honor and distinction such that the findings could be devastating to his career.”

Granted, Judge Roberts has neither been convicted of crime(s) nor found civilly liable for his conduct toward Terry Jackson Mitchell. As much as I’d like to hold my tongue while awaiting the outcome of further proceedings, however, as a member of the Bar (much less of the bench, at least later in his career), Judge Roberts justifiably is held to a much higher standard, one whose adherents are supposed to avoid, not only impropriety (much less crime), but also even the very appearance of impropriety. While it may not have been realistic for anyone to expect him to fall on his sword when he was considered for more responsible positions later in his career by confessing to criminal conduct, at the very least, he could have declined to be considered for such positions, or he could have removed his name from consideration for the ever-reliable “personal reasons.”

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Meet Doris Payne, Grand Larcenist

A Note to—or at Least a Note on, Since It’s Doubtful She’ll Ever See it—a Now-Elderly Woman Who’s Well Practiced in the Arts of Grand Theft and of Self-Justification, Respectively

By Ken K. Gourdin

Doris Payne is an 85-year-old Atlanta resident who made a career out of grand theft as a jewel thief. However, apparently, not only is she not remorseful for her crimes, she had the audacity to wear a (probably-purloined) pair of gaudy earrings to the interview that are probably among the . . . “fruits” . . . of her . . . “labors.”

To be sure, I do have my own flaws. They are legion in number, and many of them are gargantuan in size. Admittedly, I, myself, have engaged in more than my share of self-justification. That said, some of the commentary that Joseph Smith, founder of the Church of Jesus Christ of Latter-day Saints, provided on the New Testament is interesting. BYU Professor Dan Peterson once commented that the trouble with us 21st-century moderns is that many of us have lost our respect, fear, and reverence for the Divine, coming to think of God, instead, as everyone’s ever-loving, ever-supportive, never-judgmental pal. In a related vein, interestingly, Joseph Smith slightly changed the King James rendering of Matthew 7:1: “Judge not unrighteously, that ye be not judged.”

I do believe the admonition of Jesus Christ, who invited anyone who was sinless in the crowd that took the woman in adultery to throw the first stone at her (see John 8:7). But the problem isn’t simply that people in the crowd wanted to pass judgment on her; the problem is that none of them could do so righteously. To the extent that I judge Ms. Payne unrighteously, I apologize and repent. The Salt Lake Tribune recently ran a story by Kate Brumback of the Associated Press about Ms. Payne. Even though it bothers me all of the time, I’m glad that, unlike Ms. Payne apparently, I actually grew a conscience. See here, last accessed February 8, 2016: http://www.sltrib.com/home/3482818-155/i-was-a-thief-jewel-pilfering-woman. I commented as follows:

I suppose, given the time in which you came up, Ms. Payne, you and those closest to you have seen (and perhaps have even received) some of the worst treatment of blacks many people in this country have to offer. Certainly, it has taken some time for the United States to live up to the ideal expressed in the Declaration of Independence that all are created equal.

Certainly, the country sometimes seems far from living up to the ideal I allude to above, and many of its individual inhabitants have a long, long, way to go yet before reaching that ideal on a personal level, the level at which which, to quote the Reverend Dr. Martin Luther King, Jr., we judge people by the content of their character rather than by any invidious characteristic, such as the color of their skin.

To borrow and slightly alter Robert Frost, we all have miles to go before we sleep. But to deny what progress has been achieved on those fronts is to cheapen the sacrifices of those who worked so hard to move the country in that direction. As someone else once said, We’re not where we could be, we’re not where we should be, we’re not where we ought to be, but thank goodness we’re not where we were.

Perhaps, in your mind, you’re simply evening the scales or leveling the playing field at least a bit in the face of all of that injustice and maltreatment. If so, you ought to have paid more attention to what’s actually in that Bible to which you appealed for protection as a youngster: “Vengeance is mine, saith the Lord; I will repay” (see Romans 12:19).

But here’s the thing: If it’s true that countless people have experienced everything you have and worse (and surely it is), why is it that they, unlike you, are not concerned with thoughts of evening the scales or of leveling the playing field—or at least, they’re willing to leave such ultimate justice to One whose perspective on what is just and whose power, ultimately, to achieve justice far outstrips their own?

Even if one accepts your premise that you never took anything someone else didn’t want you to have, Ms. Payne, “He wants me to have it” is different than “He doesn’t care if I pay for it,” just as it does not fall to you to level unjust playing fields or to even unjust scales. And someone has to pay for all of that jewelry you’ve stolen, even if you don’t.

It may not be fair that bona fide purchasers have the resources actually to pay for their wares (even when factoring in a premium for thievery such as yours) and you don’t, but your thievery does nothing to redress that; it simply adds to the problem. As most of us learned as children, two wrongs don’t make a right.

In response to another commenter, who opined that Ms. Payne belongs behind bars, I responded that the only way she’d ever see the inside of a correctional institution—even the comparatively-cushy confines of a “Club Fed”—would be if she happened to tour one.

I wish you luck when you try out all of your excuses for your behavior on your Maker, Ms. Payne. You’re going to need it. (Luckily for you, He’s more merciful than the rest of us.)

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The Hammonds, the Bundys, the Tenth Amendment, and the Oregon Wildlife Refuge Building Occupation

The Hammonds, the Bundy’s the Tenth Amendment, and the Oregon Wildlife Refuge Building Occupation

By Ken K. Gourdin

In no way do I support the actions of the Hammond or Bundy families, who led the effort to protest what they see as unwarranted intrusion onto federal lands by leading the occupation of a federal building on an Oregon wildlife refuge. In response to a question from a friend of mine, who is a member of the Bar in another country, I wrote the following:

None of this should be read as my endorsing the actions of the Hammonds or the Bundys. Perhaps it will simply help to frame the issues or the debate. There will be a wide variety of opinions as to whether any given assertion of federal power is appropriate, and debate over such questions certainly is in no danger of abating any time soon.

The United States Constitution (at least in a historical or ideal sense) creates a dual-sovereignty system, in which some powers are left to the states and others are left to the federal (national) government. This concept largely has fallen into disfavor in recent decades and years, as courts have allowed the federal government to expand its powers in ways never dreamed of by the Constitution’s framers.

The Tenth Amendment to the United States Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The seeming limits imposed on federal power by the Tenth Amendment have, however, faced increasing erosion in recent years, in two ways.

One way the federal government has expanded its powers in recent years is by declaring more and more things “fundamental rights” which are not subject to state control. Perhaps the best recent example of this is with respect to the recent United States Supreme Court decision Obergefell v. Hodges, which held that gay marriage, as a fundamental right, is now legal in all 50 states.

Another way in which the federal government recently has expanded its powers is through the Commerce Clause. The Constitution grants the federal government the right to regulate “commerce” among the several states. In recent decades, courts, including the United States Supreme Court, has read this concept extremely broadly, allowing the federal government to impose expansive regulations on conduct, even when that conduct does not involve “commerce” in any of the usual meanings of that word, and even when it occurs entirely within one state.

Those who favor these (and other) expansions in federal power are quick to point out that those who favored the racial discrimination and segregation of blacks in the “Jim Crow” southern U.S. also appealed to the Tenth Amendment as support for maintaining that status quo. While I think there are reasons good and sound for government to, e.g., privilege opposite-sex marriage over its same-sex counterpart, it’s difficult to explain that position without escaping being tarred as someone who engages in, or who favors, allegedly-invidious discrimination.

Personally, while I think there are numerous meaningful differences between appealing to the Tenth Amendment as part of an argument against gay marriage, on the one hand, and appealing to it to maintain racial segregation and discrimination, on the other hand, that’s a challenging case to make: no one wants to be tarred as a racist, as a segregationist, or as someone who opposes gay marriage because he wants to deny rights to gays.

Again, I don’t support the actions of the Hammonds or of the Bundys. Nevertheless, if the Tenth Amendment really has become a dead letter in modern U.S. politics and jurisprudence, let those who favor its repeal “stand up on their hind legs,” as a law professor of mine likes to say, and set in motion the process necessary to repeal it. As long as it’s still on the books, though, it ought to mean something—and that meaning ought to be far weightier than that attributed to it by courts in recent years.

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State of Utah v. Robert Cameron Houston

Should Robert Cameron Houston, Murderer of Raechaele Elton, Ever Walk Free Again? I Don’t Think So

By Ken K. Gourdin

Robert Cameron Houston, as a juvenile, was sentenced to life in prison without the possibility of parole after he raped and heinously murdered Raechele Elton, a staff member at the facility where he was receiving treatment when she agreed, against her employer’s policy, to give him a ride from that facility to the secure facility where he then was confined. Nor is that the extent of his criminal record, which also includes sexual assualts or attempted sexual assaults on two relatives.

The United States Supreme Court previously barred imposition of the death penalty against juveniles in Roper v. Simmons, 543 U.S. 551 (2005), available at the following address, last accessed January 31, 2015: https://www.law.cornell.edu/supct/html/03-633.ZS.html. Mr. Houston appealed his sentence to the Utah Supreme Court, which upheld it. See State v. Houston, 2015 UT 36, available on line at the following address, last accessed January 31, 2016: http://cases.justia.com/utah/supreme-court/2015-20120683.pdf?ts=1423498586. Mr. Houston has appealed his sentence to the U.S. Supreme Court, which has agreed to hear the case.

Mr. Houston had a brutal, horrific childhood. He was born with a slightly deformed ear and without full hearing, which made it difficult for him to learn to talk. At school, he was ridiculed and bullied by his classmates for these differences. He was abused by his father, and he was raped repeatedly over a period of months by a friend of his brother.

I would never deign to compare Mr. Houston’s experiences to my own: clearly, they are very different, and I had many advantages growing up that he did not. However, we do have certain things in common. He was different from his classmates; so was I. because of those differences, many of his classmates taunted and bullied him; so did many of mine.

Notwithstanding the fact that I have Cerebral Palsy and I have walked with some sort of ambulatory device or devices for most of my life (or with a severe limp without them), I was mainstreamed in school from day one. It proved to be a blessing in the long run because it forced me to engage the world on its terms rather than demanding or expecting that the world engage me on my terms. But it did cost me, both in the short run and in the long run. Just as Mr. Houston was, I was different. Just as Mr. Houston was, I was also taunted and bullied by some of my classmates because of those differences. Just as I suspect is the case with Mr. Houston, I did not emerge unscathed from those experiences.

No one should have to go through what Mr. Houston went through as a child and as a youth. There’s no way I could possibly understand or relate to what he went through. But at some point, we all have to decide whether we’re going to allow the awful things that happen to us to become justifications for victimizing others, or whether we’re going to do the best we can to rise above them. Mr. Houston chose the former course. As unfair as it might be for society to force him to pay for that choice by spending the rest of his life in confinement, it would be even more unfair to his past victims (not to mention his potential future victims) if he ever were to walk free again.

In response to Deseret News coverage of the case, I wrote:

The brief of counsel for petitioner seems to imply that it is, I gather, “cruel and unusual” to hold Mr. Houston accountable for “a decision he made” as a juvenile by imprisoning him for life without parole. Granted, I’d like to read the brief because that particular passage cries out for context, but, “a decision he made”? Have cereal for breakfast that day, wear jeans and a t-shirt, get a tattoo . . . rape and heinously murder Raechale Elton? “A decision he made”? The usual mitigating factors likely to be found in offenses involving young offenders seem conspicuously absent in this case. Mr. Houston’s crimes aren’t simply the youthful indiscretions of someone who is young and stupid. They aren’t even the crimes of someone who is young and hot-headed. Mr. Houston is fortunate to still be alive. Had he been just a couple years older, we wouldn’t be having this conversation. I don’t care how old he was at the time he committed his crimes: society needs and deserves to be protected from him permanently.

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Dispatchers and Police Chiefs Behaving Badly

Observations on Utah Police Chiefs and Dispatchers Behaving Badly

By Ken K. Gourdin

Part I Myton, Utah Chief Wade Butterfield:  Justifiably Harsh Words About an Especially Egregious Violation of the Public Trust

Former Myton, Utah police chief Wade Butterfield was charged with stalking and other offenses for alleged conduct in which he engaged toward several women.  While he was just acquitted in one case, he does face others.  I can’t find a source for it, but at least one local media outlet reported that when one of his victims allegedly woke to find him sitting at the foot of her bed and asked him how he got into her home, he said, “I’m a cop, Holly.  We know how to do these kinds of things.”

In comments on media coverage, I addressed Mr. Butterfield directly:

I’ll leave ultimate earthy proof to a prosecutor, and the decision about whether that prosecutor has met his burden to a jury. That said, if others’ allegations of what you told them are true, such statements, even standing alone, prove that yours, sir, were especially egregious violations of the public trust. Not only should you lose your badge and pension, you should serve significant time in jail. To me, you seem to be the very personification of that old adage about how power corrupts. And if I were the judge in the case, that’s exactly what I would tell you when I imposed such a sentence upon you. (And I would make the sentences for a couple of those misdemeanor charges consecutive rather than concurrent to give you a little extra time to think about what you’ve done.)

Good luck getting a job at Wal-Mart when you get out.

After seeing his photograph, I added, “It just dawned on me: We’re the same age. From the looks of things, your 45 have been a helluva lot harder on you than my 45 have been on me.” And in response to quips about his appearance, I added, “And you guys are being too hard on him with those wisecracks about his hair. Using an animal pelt as a toupee is a lot cheaper than buying the real thing!”

One of the charges he faced was unlawful detention.  His alleged victim was not under arrest and was not being detained pending investigation of any offense.  Butterfield had taken her for a ride in his patrol car, ostensibly to search for her missing vehicle.  She reportedly told him several times she wanted him to let her out, and he did not comply.  

The Utah unlawful detention statute, Utah Code Annotated, Title 76, Chapter 5, § 304, reads in part: “ An actor commits unlawful detention if the actor intentionally or knowingly, without authority of law, and against the will of the victim, detains or restrains the victim under circumstances not constituting a violation of [Utah’s kidnapping, child kidnapping, or aggravated kidnapping statutes, respectively].”

Upon news of his acquittal, I wrote:

It’s been awhile since I’ve read the unlawful detention statute, and I don’t have access to cases construing it, but, to me, it seems that if she says, “Please pull over, I’d like to get out now,” and he doesn’t, that’s a prima facie case that he violated that statute. On those facts, the only way the jurors could acquit him is if they don’t believe her. And if I were [Butterfield’s attorney] Mr. [Earl] Xaiz, there’s no way I would let Mr. Butterfield within ten miles of the stand unless I’m concerned about whether the witnesses against him are credible.

Part II – Monticello Utah Chief Kent Adair and a Dispatcher Laugh About an Incident Involving a Now-Former Monticello Police Sergeant

Monticello, Utah, P.D. Sergeant Cole Young was suspended pending investigation of assault on a man he found in his estranged wife’s home while Young was off-duty. Young was later fired over the incident When Young’s wife reported the incident, the dispatcher—no doubt hoping for grist to feed the small-town community rumor mill—wanted to know who the victim was.

The dispatcher called another Monticello officer, who did no investigation beyond determining that Young’s truck was parked at his residence. Then she called Monticello Police Chief Kent Adair, and they are heard laughing about the incident on dispatch recordings. Chief Adair told the dispatcher to pass the report on to the San Juan County Sheriff’s Office in the morning. In response to news coverage of the incident, I wrote:

So, let me get this straight, Chief Adair: It is a conflict of interest for your agency to investigate the report because one of your officers was involved in the incident, but it’s not a conflict of interest for you to decide to sit on the call overnight before passing it on to the agency responsible for investigating it? And I was a dispatcher only long enough to realize how badly I sucked at it, but everyone, including dispatchers and officers in Hole-in-the-Wall, Nowhere, needs to approach every call as though everyone on earth eventually will be able to listen in on how it was handled because, essentially, that opportunity will be available to anyone who chooses to avail himself of it and who has the resources (i.e., the equipment) necessary to do so.

Update, January 8, 2015: Now comes word that the sheriff has recommended the firing of the dispatcher who had the above-described conversation with the chief, the sheriff’s deputy who confined his “investigation” of this reported incident to verifying the location of the former Monticello officer’s truck has been fired, and the chief has been placed on leave.  See here, last accessed today:

http://www.sltrib.com/news/3395755-155/utah-officer-disciplined-dispatcher-on-leave

 

 

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Dating Web Site is Utah’s Shame

Idiotic Dating Site Brings Shame on My Home State

By Ken K. Gourdin

Much to my shame, one of my fellow Utahns has started the Web site Wherewhitepeoplemeet.com. (You’ll note that I did not turn the preceeding address into an active link: that’s deliberate). See Salt Lake Tribune coverage of this abomination here, last accessed January 5, 2015: http://www.sltrib.com/home/3366844-155/utah-based-dating-site-provides-a-place.

I responded:

Oh, Phhhhhhh! If someone wants to miss out on meeting some great people by confining his or her dating pool to those only within his or her own race, too bad! I’ve dated Filipina, Latina, Black, White, Brown … Not to mention girls of every size and shape. There’s only one reason I might trade my experiences for those of someone else, and that’s that I haven’t yet met Ms. Right. I’m sure the people who use this … Ahem! … service … will get exactly what they deserve!

In response, someone compared me to some fool Lothario who allegedly is an expert in—to borrow a movie title—What Women Want, asking, “Roosh V, is that you?” I replied:

I have no idea why you would confuse us: “Mister V’s” motto seems to be “Bed ’em, bang ’em, and bolt,” and he seems only interested in “Ms. Right … for tonight.” If he thinks he’s God’s gift to women, more power to him, but I’ve never suffered under that delusion.

Later, I couldn’t resist borrowing (and slightly altering) the slogan used by the nation’s pork producers: “Utahns: the other white meat.”

Now comes word that, according to its founder (who really ought to know), the site isn’t about race, after all. See here, last accessed January 5, 2015: http://www.sltrib.com/news/3378638-155/utah-based-dating-site-for-white-people?page=2. I responded: “Right. The site’s not motivated by race at all. That’s why you waited to make any mention of race … all the way until the site’s Web address. Go ahead, Mr. Russell: Tell us how many black or minority friends you have.”

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