223. What's cops got to do with it?

A year-end AP story provided a list of causes for a recent rise in criminal violence - and it didn't mention the government.  (See post 212.)  But if the Missouri cops had caught Michael Devlin after the first boy was kidnapped, the second boy would have been spared the ordeal.

It's a banal point in itself, but it leads to a point that is not banal - that is, in fact, actively resisted by most lawyers and judges.

Here in Albuquerque a couple was murdered on New Year's Day, shot in their SUV.  The chief suspect - who left tracks in the record snow that dumped on us, leading police directly to his motel room - turned out to be wanted for questioning for a very similar shooting that happened last fall in Lubbock.  If Lubbock police had caught him, he wouldn't have killed the two women in Albuquerque.

This isn't to suggest that either the Missouri or Lubbock police failed to do their jobs.  There may not have been any more that they could realistically do.  But the cause-and-effect relationship between a failure to arrest and subsequent violence is obvious enough that courts are increasingly prepared to say that police can be sued when they don't arrest the bad guys fast enough.

Just a couple years ago, in a decision that was eventually reversed by the Supreme Court, a panel of Tenth Circuit judges ruled that Colorado police could be sued for violating a woman's constitutional rights

when [they] failed to enforce a restraining order against her estranged husband, Simon Gonzales, after he abducted the children. While Ms. Gonzales was seeking enforcement of the order, Mr. Gonzales murdered the children.

On those dreadful facts, the Tenth ruled, Ms. Gonzales was entitled to go to trial on the theory that the cops violated her constitutional "entitlement to have Simon Gonzales arrested."   (Here's the en banc opinion taking up more space to reach the same conclusion.) 

(The phrase "en banc" is meaningless in itself - "on bench" - but for some reason this scrap of gibberish is universally used in the American legal biz to signify all the judges, as opposed to the usual 3-judge panel.)

In 1997, New York's highest court concluded that sometimes survivors could sue the cops for failing to arrest a suspect.  That case once again involved a predictably murderous husband, proving the justice of the Alaska Supreme Court's observation that courts are most inclined to find against the police when confronted with "egregious facts".  That is, the police can't be sued for failing to arrest somebody - unless things turn out really badly.

(Of course, if the cops had arrested the suspect, thus preventing things from turning out badly, the arrestee could have sued for false arrest.  That's the beauty of the legal system - there's money for lawyers either way.)

The idea that a screw-up by the cops can lead to additional suffering is obvious enough.  But isn't it equally obvious that a screw-up by the criminal courts can do the same?  And (this is where it starts to get tricky) isn't it also true that sometimes adherence to the rules - that is, the failure to screw up - can also lead to unnecessary pain, degradation and death?

Tune in tomorrow.  Same bat-time, same bat-channel.

Comments

[John McFaddden]

There is a judge in my town saying one thing and doing another. The judge accused me of wanting to be secretive about the situation here so I started a web site: http://abail.net. I like your web site and hope you visit mine. Following is an example of what is going on here. Anyone have any ideas about this?



1/12/2007


To: Governor Schweitzer


Re: Conference Call with Judge Knisley & Staff




This letter will serve as a written memorandum of a telephone conversation on December 15, 2006, regarding a defendant, Mr. “Smith”. Please help.

The primary reason I called the Court regarding Mr. Smith was the recent trial of MOUNTAIN PEAKS INCORPORATED vs. POHLE, FLORES AND COMMUNITY SOLUTIONS, INC., DV 05-1199, wherein Judge Knisley testified regarding pretrial supervision. The jury found defendants guilty of committing the following acts: perpetration of a civil conspiracy, breach of the covenant of good faith and fair dealing, breach of their duty of loyalty as employees, constructive fraud and intentional interference with the business of plaintiff. Judge Knisley’s testimony stated she did not intentionally jail defendants simply because they were poor and unable to pay, in advance, the costs of pretrial supervision. Yet it appeared Mr. Smith had been jailed, and would remain there even after posting bond, until he could pay in advance the costs of pretrial supervision. Therefore, I decided to contact the Court and advise it of a defendant jailed by the Court and subjected to extortion.

Judge Knisley offered testimony under oath that she was not involved in the defendants' conspiracy to ruin plaintiff’s business. She then testified that when defendants are placed on pretrial supervision it was the duty and responsibility of those supervising defendants to ensure they were, in fact, adequately supervised. She also testified that when a defendant lacked the financial resources to pay the costs of pretrial supervision, it was the duty of the supervisory personnel to find jobs for those defendants so they could pay, and remain out of jail pending trial. Judge Knisley was adamant that defendants should not be placed in jail if they could not pay, as the overriding concern was to ensure defendants were adequately supervised pending trial, and not jailed simply because they were poor and unable to pay such costs.

Nonetheless, the Court’s action in respect to Mr. Smith and the Court’s comments during our telephone conversation lead me to conclude that the Court will jail poor defendants if they cannot pay in advance the costs of pretrial supervision. I am concerned that the way pretrial supervision is currently administered in Billings Municipal Court rises to a level of being PUNITIVE and illegal. Despite Judge Knisley’s sworn protestations to the contrary, the common practice in her Court is to order defendants to be placed on pretrial supervision conditioned upon immediate payment of the costs in advance. Where a defendant has the financial resources to pay, they are shackled with a monitor, given limited freedom, and avoid being jailed. Said costs continue through to the conclusion of the trial, are paid to those supervising the defendants and are never remitted to defendants, even when the Court finds defendants not guilty of a crime. Under this scenario, i.e., forcing defendants to pay in advance the costs of supervision prior to being allowed his/her freedom is extortion and constitutes a taking of property (money) without due process and equal protection of the law.

When a defendant lacks the ability to pay in advance costs of pretrial supervision, the Court jails him/her without a hearing until such payment is forthcoming. It appeared that something similar to the foregoing happened to Mr. Smith and this certainly contradicts Judge Knisley’s sworn testimony that poor defendants are not jailed because they cannot afford to pay such costs in advance. When this occurs, defendants are deprived of their freedom and until defendant and / or the family pay the costs of supervision, they remain jailed. If the costs are subsequently paid, the results are the same i.e. the government has caused a taking of property (money) without due process and equal protection of the law. To condone the foregoing only results in more unjust enrichment for the companies who “supervise” misdemeanor defendants, at the expense of the defendants and taxpayers.

It appears Judge Knisley’s Court is the only Court that subjects defendants to incarceration for being unable to pay in advance such costs. In effect the Court has implemented a practice of perpetrating and waging “legalized extortion”. It shows little concern that it is using the legal system to imprison the poor until they concede to the government’s demand that private supervision companies take the defendants’ property (money) without due process and equal protection of the law.

Defendant Smith was recently arrested and charged with violating his probation. He posted a $1000.00 bond and was released from jail pending arraignment. At his arraignment the defendant, appearing pro se, entered a plea of not guilty. At the same time, the Court, without notice to any party, increased defendant’s bond from $1000.00 to $5,000.00 and placed him on pre-trial supervision and ordered he pay in advance all associated costs. Because the defendant lacked the finances to post the $5,000.00 bond and was unable to pay in advance costs associated with the pretrial supervision, the Court summarily jailed him pursuant to Judge Knisley’s order. Thus it would seem that in stark contrast to Judge Knisley’s sworn testimony, the Court does believe in “Debtors’ Prison” and it does not hesitate to jail the poor when they cannot afford “justice”.

To the best of my understanding, at no time did the Court, either during his arraignment or at any time subsequent thereto, provide Mr. Smith an opportunity to be heard regarding the foregoing bond increase and pretrial supervision. The Court’s failure to provide the defendant with an opportunity to be heard constitutes a denial of due process and equal protection of the law, and undoubtedly violates 43-9-311(2), M.C.A.

The Court certainly has the discretion to raise or lower a bond; nonetheless, it is mandated by statutory law that where the Court takes such action, i.e., raising, lowering or modifying a bond it “…must provide reasonable notice of such application to opposing parties (defendant) and their attorneys.” 43-9-311(2), M.C.A. The Court’s action in failing to provide “reasonable notice” to the defendant deprived him of a hearing whereby he could object to the increased bond and being jailed simply because he was too poor to pay in advance the costs of pre-trial supervision.

Again, the primary reason I contacted the Court regarding Mr. Smith was the recent trial of MPI vs. POHLE, FLORES AND COMMUNITY SOLUTIONS, INC., DV 05-1199, wherein Judge Knisley testified regarding pretrial supervision. The defendants based their entire defense on the fact, and testified to the fact, that they and the Court did what was done, because it was unethical and illegal to jail people simply because they could not pay the costs of supervision. The Court’s jailing of Smith and its adversarial attitude in refusing to hear complaints indicates such violations will continue until outside forces intervene to rectify this miscarriage of justice. Therefore I plead with you to do everything within in the law to prevent such violations and help remedy this frightful loss of our civil liberties.


Sincerely,




John McFadden
A-Bail
1212 Grand Ave. # 110
Billings, MT. 59102
406 254 1311

cc:

Governor Schweitzer Representative Roy Brown
State Capitol
P.O. Box 200801
Helena, MT. 59620-0801
Bill.SLC@ic.fbi.gov Bill.SLC@ic.fbi.gov FBI

Georgia Lovelady
ACLU of Montana
Power Block, Level 4
P.O. Box 1317
Helena, MT 59624


Dennis Paxinos
Yellowstone County Attorney
217 N.27
Billings, MT 59101

Captain McCave
YCDF
3165 King Ave. E.
Billings, MT. 59101

Richard G Phillips
State Public Defenders Office
207 North Broadway, Suite 201
Billings, MT. 59101

Leif Johnson
U. S. Attorney
P. O. Box 1478
Billings, MT 59103

Ernst Weyand
FBI
2929 3rd Ave. N. Suite 205
Billings, MT. 59101

Marie C.
The State Bar of Montana
P.O. Box 577
Helena, MT 59624

Lois Menzies
Court Administrator for Montana Supreme Court
Room 328, Park Avenue Building
301 S. Park
P.O. Box 203005
Helena, Montana 59620-3005

Mike McGrath
Attorney General
Department of Justice
P.O. Box 201401
Helena, MT 59620-1401