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Could it Be Moderate Lead Exposure is a Primary Cause of Crime? Maybe

By Ross Parker
ticklethewire.com

Perhaps you, like me, have blithely assumed declining crime rates are due to some wonderfully fortunate combination of social factors.

Not so, says Kevin Drum in a fascinating, recent article in Mother Jones. Citing dozens of crime causality studies, he makes a provocative and convincing case that a generation of children’s exposure to lead has spiked violent crime far more than any other social factors.

The quadrupling of lead emissions into the atmosphere by leaded gasoline in the mid-20th century was followed, 20 years later, by a startlingly similar increase in the crime rate in the ‘60s through the ‘80s. Likewise, when the former declined after the Clean Air Act removed lead from gasoline, so did the latter in a statistical curve suggesting strong correlation, if not causation. Studies in other countries seem to reaffirm this hypothesis.

And Drum asserts that the remaining detritus of lead in the soil and the environment will continue to influence the crime rate until radical and expensive action is taken to remove it. These expenditures, however, will be more than offset by a multi-fold financial benefit in lower health and crime costs, he believes.

Much of the heavy lifting on this issue has been done by Amherst College Professor Jessica Wolpaw Reyes who compared Massachusetts kids’ 1990 lead exposure with their 2000 test scores and behavior problem records. She found even moderately elevated blood lead levels could be responsible for increased adult aggressiveness and violent criminal behavior. Reyes hypothesizes that it may also cause a tendency toward impulsive behavior, ADHD, substance abuse and a host of other social ills.

Unlike most of her colleagues, Professor Reyes writes with a minimum of unexplained geek-speak that is clear enough for even federal pensioners to understand.

Ah, when I think of all the times my case agents and I worked into the night on evidence when all we really needed was a simple blood test to present in court. All kidding aside, though, I would not be surprised if some imaginative defense attorney used high-lead blood levels as defense in a criminal trial — no doubt more plausible than Twinkies, particularly in the sentencing phase of a capital trial.

Drum’s article has stirred up a you-know-what storm of debate among economists and statisticians regarding the methodological validity of the studies he relied upon. An even more contentious wrangling has ensued in response to his clarion call for the U.S. to spend $400 billion in the next two decades to eliminate lead from the environment.

This storm of articles, blogs and essays tosses about terminology such as meta-analysis, regression methods and cohort studies and has generated a feeding frenzy in the many fields involved — neurologists, economists, statisticians, and public health experts. The flurry of debate over the fine points of statistical method and points far finer still seems to obscure the common sense reaction to Drum’s article and Professor Reyes’ studies to the point of immobilizing appropriate response.

Amid the semantic sorties, however, there has not been a single comment by the profession whose job it is to protect the public from crime — law enforcement. Not only are we are not on the sidelines in this contest, we aren’t even in the stadium.

Perhaps we are down the street in some sports bar casually watching others toss this ball around.

Maybe the lead/crime correlation is not causation. Maybe the decline in crime is permanent. Personally, I doubt both propositions. The studies on the effects of even low levels of lead exposure on kids’ sensitive brains seem convincing enough to justify a much higher priority for researching the issue.

Crime and the causes of crime will continue to be a defining issue in this country for generations to come and the lead/crime debate demands more than scientific research alone can deliver. We must broaden the discussion to include a larger perspective, especially from law enforcement leaders.

Why shouldn’t a Presidential commission be convened with representatives from a wide range of disciplines to take a comprehensive and meaningful look at the relationship between the present lead levels in the environment and future criminal activity?

The issue is too important for law enforcement to take a sideline seat, watching while scientists and statisticians parse it to death. Law enforcement needs to assume a leadership role in analyzing and coordinating the views of other disciplines, injecting a healthy dose of real world common sense into the debate.

Perhaps we can make the issue so understandable it can even be understood by moronic politicians. After all, the prevention of crime is our bailiwick — and our responsibility.

 

Simply Put, The Death Penalty Costs Too Much

Second of a two part series.
 
 
By Ross Parker
ticklethewire.com

Stan Garnett, the District Attorney in Boulder, recently told the people of Colorado that, although he was not morally or philosophically opposed to the death penalty, he had simply concluded that it was too expensive, time consuming, and subject to random application. As reported in Colorado’s Daily Camera, he said that he found it to be impractical and of limited law enforcement relevance.

A recent death verdict had cost the state $18 million to fund its appeals. The budget of the county prosecutor’s office is $4.6 million a year, and he had 1,900 other felonies to prosecute. Boulder County has not executed anyone in the 140 years since statehood.

Damon Thibodeaux had confessed after a nine-hour interrogation to raping and killing his 14-year old cousin. He later recanted the confession but was convicted and sentenced to death in Jefferson Parish, Louisiana. He spent 15 years on Death Row in Angola Prison. In September of this year, after a five-year investigation in which the District Attorney cooperated fully, including DNA evidence, his conviction was set aside and he was released a free man. Capital defense experts claim that 140 other Death Row prisoners have been exonerated since 1973, 18 by DNA.

These two factors—financial burden and fear of executing an innocent person—are defining the terms of the current debate on the death penalty. Few such discussions seriously mention factors formerly considered crucial—morality, religion, deterrence, racial discrimination, except in passing. Nor do other seemingly important matters such as random unfairness, mental illness of offenders, logistical problems with the humane administration of lethal injection drugs, seem to affect the great majority of the populace or political decision makers very much.

Whatever the nature of the debate, the trend is clear. Five states in the last five years have ended capital punishment. Twenty-nine states have not conducted an execution in over five years, twenty-three in over ten years. There were 224 death sentences and 85 executions in 1985 compared to 78 death sentences and 43 executions in 2012.

Thirty-three states still have the death penalty but few use it. Three-fourths of the executions in the U.S. in 2012 took place in just four states: Texas, Oklahoma, Mississippi, and Arizona.

Even a conservative Supreme Court has whittled away at the scope of permissible candidates for the death penalty by eliminating broad categories: Cohen-1977 (rape not resulting in death); Emmund-1982 (minor participants who do not kill or attempt to kill); Ford-1986 (insane persons); Thompson-1988 (juveniles 15 and under at the time of the crime); Atkins-2002 (mentally retarded); Roper-2005 (under 18 at the time of the crime); Kennedy-2008 (victim’s life is not taken).

For voters, however, constitutional issues have little sway. By far, the most important consideration is simply that capital punishment costs too much. The budget pressures and burgeoning costs faced by state and local government, especially in a time of economic uncertainty, are leading to a reconsideration of a host of subjects previously thought to be politically untouchable—mandatory minimum sentencing, law enforcement expenses, police on the street, and state corrections systems. Get tough on crime has given away to what can we cut out of the budget.

Repeated studies and estimates have concluded that capital prosecution costs have skyrocketed: Maryland ($37 million in overall costs for each execution since 1978, $3 million for each prosecution); Florida ($3.2 million per case); Texas ($2.3 million per case); Utah ($1.6 million). Federal capital cases are said to cost eight times the cost of non-capital murder cases.

With the highest number of prisoners on Death Row, California’s example is illustrative. The state has spent approximately $ 208 million in overall costs for every execution administered. It currently costs about $100,000 per year per prisoner on Death Row.

Despite these expenditures, the Chief Justice of the California Supreme Court estimates that it will be over three years before problems relating to lethal injections can be resolved in the courts sufficiently to permit executions. About 1 % of the death sentences imposed in the last thirty years have resulted in an execution. Capital punishment in California, which has almost a fourth of all prisoners on Death Row, appears to be an irremediable mess.

There is one voice of counter-argument to the growing momentum on the cost issue. Dudley Sharp, Resource Director of Justice For All, has written and spoken prolifically that these cost studies are flawed and that capital case costs could be brought to an acceptable level. His forceful essays are easily accessible on the internet and are worth reading.

Although I respect his analysis, my problem with Mr. Sharp’s position comes primarily from working next to four of the best and brightest trial and appellate prosecutors I have met. Each investigated and prosecuted capital cases and devoted enormous amounts of time and energy. None resulted in a death verdict, but in the zero sum game of prosecutors the cases kept them from pursuing other proactive cases. The prosecutions also consumed a huge amount of time and resources of investigators, defense attorneys, judges, and court staff at every stage of the case, investigation, pre-trial, trial, and appeals. I cannot conclude that these costs are comparable to non-capital prosecutions.

Moreover, it appears to me that the studies seem to leave out some expenditures and costs to society, particularly intangible, difficult to quantify ones. Perhaps more importantly, regardless of whether these costs could be contained, local governments increasingly believe that their escalation is exorbitant and inevitable. This perception is driving the momentum. Even Mr. Sharp’s hometown of Houston, once called the democratic capital of capital punishment in the world, is slowly decreasing its use.

The other factor affecting the debate on capital punishment is the waning confidence that no state will execute an innocent defendant. Since 1980 DNA tests have exonerated about 300 felony prisoners, many of whom had already served lengthy prison sentences. This development has led to some public questioning of the assumption that our multi-layered system of constitutional protections guarantees truthful verdicts and just sentences. Instead some criminologists believe that from 1-3% of those in prison did not commit the offense of which they were convicted.

Professor Samuel Gross of the University of Michigan estimates that the conviction error rate in capital cases since 1990 is between 2.5 and 4 %. Professor John Blume of Cornell Law School conducted a study that concluded that 88% of the executed defendants who “volunteered” by terminating their appeals were either mentally ill or had a serious substance abuse problems.

Other experts consider these figures to exaggerate the problem, and some earlier studies dispute the assertion that the legally exonerated were factually innocent. However, to a person on the street, the small but nagging uncertainty about the state taking the life of an innocent person is increasingly adding to the tipping point in the decision about the death penalty.

The United States ranks fifth in the number of executions imposed, behind China, Iran, Saudi Arabia, and Iraq. Nice club to be a member of. No other G7 nation permits capital punishment. To these latter countries the evolution of justice has made punishment by death a barbaric anachronism.

On many of these factors and sub-questions in the debate, I think that reasonable minds can differ, and I respect the contrary views of others, particularly former law enforcement colleagues, who still cling to the propriety of the death penalty. It is not an unreasonable conclusion that, from a policy and moral perspective, capital punishment is an appropriate sanction in the most extreme cases.

Just so the record is clear, however, my personal view is that the death penalty in the 21st Century is morally wrong in a civilized society; that it can be freakishly wanton in its selection of people to execute; that its unforgiving finality strains the entire criminal justice system; that it provides precious little or no deterrence to craven impulsive murderers; and that there continues to be a possibility of a botched and inhumane administration of the instrument of death.

Yes, and that in a perfect storm of unlucky factors, a poorly represented, especially African American charged with killing a white victim, in a rural county of the South particularly but not exclusively, faces a real risk of being convicted and executed, even though he is an innocent man. A real enough risk to convince him to plead guilty to life imprisonment to something he didn’t do.

If I ever move to Texas, that should be enough to convince some trial prosecutor to use one of his peremptory challenges to keep me off of a capital jury.

Regardless of our disagreements on these different aspects of the debate, I believe that an increasing number of people, including law enforcement folks, are coming to the conclusion that the exorbitant costs of the death penalty do not represent a wise use of the scarce resources devoted to investigating and prosecuting crime.

And that reason, if for no other, should be enough to end the death penalty in America.

Read Part 1

 

 

 

 

The Agonizing Death of the Death Penalty in America

This is the first of two parts.
 
 
By Ross Parker
ticklethewire.com

Stephen Simmons slowly walked up the steps to the scaffold in Library Park in Detroit. It was September 24, 1830, his last day on Earth, and he looked out at the festive crowd of 2,000 celebrating spectators.

Men had brought their wives and children, there were refreshment booths, and a military band played a lively tune.

A local tavern owner, Simmons was a pleasant enough guy while he was sober but a demon when he was drunk. One night a month earlier, in a drunken rage, he had strangled his wife Livana when she refused to drink with him.

The crowd quieted as he stepped up to the gallows. In his last words he made a heartfelt confession about his crime and the evils of liquor.

The holiday mood evaporated as he sang a Christian hymn. Then the noose was placed around his neck and he dropped to his death. Public enthusiasm for the death penalty plummeted in the Michigan territory.

Seven years later, across the Detroit River in Windsor, Ontario, Patrick Fitzpatrick was hanged for murder despite his protests of innocence. A few months later, another man made a deathbed confession that he, not Fitzpatrick, had committed the murder.

When the Michigan legislature considered the issue of capital punishment in 1846, these two factors—the public’s moral repugnance of the death penalty and the fear of executing an innocent man—convinced them to abolish capital punishment for murder. The state was the first English-speaking government in the world to abolish the death penalty.

 

The Simmons hanging in Michigan had defined the capital punishment debate not only in the state but, to some extent, for the rest of the country, in moral and religious terms.

Was the death penalty morally justified as a just retribution for the taking of a life? Did the Bible authorize it or forbid it as a penalty option in the most heinous cases?

Michigan and a handful of states rejected the ultimate punishment, but the overwhelming majority of states embraced the death penalty as morally justified and ordained by God as “an eye of an eye.”

There were other great historical causes in 19th early 20th Century America that were also vigorously debated primarily in terms of morality—temperance, women’s suffrage, and the abolition of slavery. While both sides of each of these issues raged on for decades without a resolution, ultimately it was the pragmatism of economics and politics which settled them, not so much morality. For a growing majority, the country’s future simply could not proceed with unenforceable and corrupting Prohibition and the marginalization of large parts of the population.

Similarly, the future of the death penalty is being decided in terms of economics—taxpayer dollars and cents. Slowly, incrementally, the death penalty is dying in America. Not because most people believe that the worst offenders do not deserve the most severe sanction. Nor has the debate over the efficacy of the penalty produced anything definitive. Studies on both sides of the issue claim to prove that the death penalty either does or does not deter others from committing the worst forms of murder.

Not only are these previously debate-defining terms not coming to any resolution, they are slowly being moved to the role of afterthought. Few people even talk about deterrence and moral justification any more. Instead what little debate that is occurring focuses on questions like: can local prosecutors’ offices afford death penalty litigation? Can the death penalty be administered in a humane and botch-free manner? In a post-DNA world can we guarantee that no innocent person will be executed?

More than any other factor, the future of the death penalty is being determined by the growing sentiment that we simply cannot afford it. Even though a majority of Americans probably continue to believe that capital punishment is justified for the mass murderers we hear about on the news with disturbing regularity, they are no longer willing to pay the increasing price. Just as likely, pragmatic considerations in an era of economic insecurity affect those moral decisions on whether as a society we need capital punishment.

Next week this column will explore this downward trend in the use of the death penalty and discuss one ex-prosecutor’s view on where it is heading—the death of the death penalty in America.

 

Shouldn’t We Do More to Avoid Mass Deaths By Crazed Gunmen?

By Allan Lengel
For Deadline Detroit

During my visits to Israel, the idea of security was never far off. At the train station, at the bus stop, I went through a metal detector. An armed guard checked through packages and asked if I was carrying a gun.

After Sept. 11, 2001, I thought the U.S. would have second thoughts about security in public places, particularly with the threat of terrorism looming here.

I figured maybe places like malls or movie theaters might consider screening customers.

But no. That hasn’t happened. Americans have a way of conveniently forgetting or deferring such concerns until the next tragedy.

All around the country, we’re seeing all too often crazed gunmen — homegrown terrorists if you will — open fire on innocent citizens. Each incident is a reminder that we probably aren’t doing enough.

To read full column click here.

Santa’s Helper, a Giant Elf, a Cuban Inmate Uprising and the Salvation Army

 
By Greg Stejskal
ticklethewire.com

This is a Christmas story, but it really began just before Thanksgiving in 1987, at the Federal Penitentiary in Atlanta.

The Cuban inmates had rioted and had taken control of a sizeable portion of the penitentiary. The catalyst for the riots happened years before that in 1980.

The Mariel boatlift, a massive exodus of Cuban refugees from Cuba to the US, had among its refugees, convicted criminals. Fidel Castro had apparently thought the boatlift was an opportune time to decrease his prison over-crowding.

Upon arrival in the US those Cubans who were determined to be criminals were detained and placed in US penitentiaries with no clear plan as to what to do with them in the long term.

This uncertain future led predictably to unrest and ultimately to the prison riots.

When the inmates rioted and took control of part of the Atlanta Penitentiary, they also took some of the staff hostage.

The FBI was tasked with negotiating with the inmates and providing SWAT teams should it become necessary to retake control of the penitentiary by force and rescue the hostages.

SWAT teams from many of the large offices were called to respond to Atlanta. Our Detroit team was one of those teams.

So on a cold, rainy November night, an Air Force C-141, flying a circuit, landed at Detroit Metro Airport to pick up our team. Already on board were teams from Pittsburgh and Cleveland. We arrived in Atlanta early the next morning.

The Atlanta Penitentiary is a foreboding place. It was built in phases beginning in the late 1800s, into the first few decades of the 1900s.

It has 60-foot walls with watch towers on each corner. Upon our arrival we climbed to the top of one of the watch towers and looked down into the prison yard. It looked like a scene from a post-apocalyptic “Mad Max” movie.

Inmates were walking around the yard, all carrying homemade weapons: long-knives, swords, etc., made from scrap metal and sharpened on some of the prison machine tools.

After seeing that scene, we all assumed we were going to be in Atlanta for awhile. We knew we would prevail if it came to having to use force. After all they had made the critical tactical mistake of bringing knives to a gun fight. But they had hostages and a large supply of non-perishable food in their control.

The next morning I was walking to the Penitentiary administration building for the shift change briefing when I saw a tent where free coffee and Krispy Kreme donuts were being served. It was the Salvation Army tent. The Salvation Army was there every day of the insurrection including Thanksgiving serving coffee, donuts, smiles and kind words. I’ve been on a lot of SWAT operations, but I had never been offered coffee, donuts or kind words from the neighborhood in which we were operating.

Knowing the Salvation Army was there for us, had me thinking that I owed this selfless organization a debt – a pay it forward kind of thing.

The penitentiary insurrection was resolved peacefully after about two weeks. The key factor was that no social order was developed among the inmates just anarchy. They went through several months food supply in days. (There are a lot of good stories from the “siege” of the Atlanta Penitentiary, but those can be told another time.) We all went back to our respective homes.

I didn’t forget the Salvation Army’s generosity. I decided every holiday season for a few hours, I would volunteer to ring the bell and tend the red kettle in my hometown of Ann Arbor, Michigan.

Some years later, I was ringing the bell at a local super market with my wife. We had both donned our Santa hats and were wearing the Salvation Army issue red vests. It was snowing lightly, the Christmas lights were shining and Christmas carols were playing on the stores PA system.

We were at one door of the store greeting shoppers and collecting donations in our kettle, when all of a sudden there was a commotion at the other door.

A man ran out of the store. He was closely followed by two other men in white butcher smocks. The men in the smocks tackled the man in the parking lot. They were trying to hold him down, but he was struggling & screaming as they pulled several cuts of meat from under his coat. The erstwhile meat thief continued to yell, flail and kick.

I turned to my wife and said, “I should probably go help them.” I kept flex-cuffs (large heavy duty zip-ties) in my car. I grabbed some flex-cuffs, walked over and knelt next to the struggling man.

He was facing away from me. In my “soothing,” authoritative voice, that I used for arrests and reading someone their rights, I told him, we could let him up, but he needed to let me put these cuffs on him.

The man turned his head to look at me, and his eyes got very big.

I’m about 6’4” and weighed about 235 lbs. I had forgotten I was wearing a Santa hat and a big red vest. After staring at me for a few moments, he asked, “who are you?” I smiled and replied, “I’m Santa’s helper.”

He immediately stopped fighting and struggling. He submissively allowed me to place the cuffs on him. The butchers and I stood him up, and he placidly waited for the police to arrive.

I have often thought there might be some profound Dickens type message to be derived from this incident. I don’t know if the meat thief was stealing prime rib for his family, sort of a protein version of Jean Valjean, or maybe he was planning to host a barbecue at a homeless enclave.

There is certainly some irony in collecting donations for the Salvation Army at one door of a grocery store, and at the same time, to have an economically disadvantaged meat thief fleeing from the other door.

Maybe the message is as simple as, if you’re poor and hungry at Christmas time, there are places other than your local grocery store you can go that care, like the Salvation Army.

Merry Christmas and Happy Holidays!

This column first ran last Christmas season. 

Prosecutors in Petraeus Case Exercised “Sound Discretion”

By Steve Levin
For ticklethewire.com

In 2004, the then-US Attorney for the District of Maryland famously wrote in a leaked email that he wanted three front-page indictments by November of that year. Though open to interpretation, the impression left by the poorly-drafted missive is that prosecutors should seek headlines rather than justice.

Let’s give credit to the prosecutors involved in the Petraeus/ Broadwell affair, er, matter for their exercise of sound discretion.

Assuming the accuracy of the news reports, Paula Broadwell potentially subjected herself to indictment for any number of federal crimes. In his paper entitled Computer and Internet Crime, G. Patrick Black, a federal defender in Texas, analyzes a number of cyberstalking statutes. As Black writes:

Under 18 U.S.C. 875(c), it is a federal crime to transmit any communication in interstate or foreign commerce containing a threat to injure the person of another. Section 875(c) applies to any communication actually transmitted in interstate or foreign commerce – thus it includes threats transmitted in interstate or foreign commerce via the telephone, e-mail, beepers, or the Internet. Title 18 U.S.C. 875 is not an all-purpose anti-cyberstalking statute.

First, it applies only to communications of actual threats. Thus, it would not apply in a situation where a cyberstalker engaged in a pattern of conduct intended to harass or annoy another (absent some threat). Also, it is not clear that it would apply to situations where a person harasses or terrorizes another by posting messages on a bulletin board or in a chat room encouraging others to harass or annoy another person.

 

Next, as Black continues, certain forms of cyberstalking also may be prosecuted under 47 U.S.C. 223. One provision of this statute makes it a federal crime, punishable by up to two years in prison, to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number.

The statute also requires that the perpetrator not reveal his or her name. See 47 U.S.C. 223(a)(1)(c). Although this statute is broader than 18 U.S.C. 875– in that it covers both threats and harassment –Section 223 applies only to direct communications between the perpetrator and the victim. Thus, it would not reach a cyberstalking situation where a person harasses or terrorizes another person by posting messages on a bulletin board or in a chat room encouraging others to harass or annoy another person. Moreover, Section 223 is only a misdemeanor, punishable by not more than two years in prison.

The most likely statute under which charges may have been brought against Broadwell is 18 U.S.C. 2261A, also known as the Interstate Stalking Act. The ISA makes it a crime for any person to travel across state lines with the intent to injure or harass another person and, in the course thereof, places that person or a member of that person’s family in reasonable fear of death or serious bodily injury causes substantial emotional distress to that person [or a member of their family.]” This assumes, of course, that Broadwell traveled across state lines with such an intent. Assuming she did and assuming prosecutors could establish such an intent, it is both surprising and refreshing that prosecutors apparently decided not to bring criminal charges.

As I have written before, some public figures, such as government employees, are justifiably subject to a higher standard of conduct. However, it might be difficult for an agent or a prosecutor to resist a viable federal charge against a celebrity that would be an easy declination if the target were an average citizen.

See, for example, United States v. John Edwards, one of many recent cases that suggest that prosecutorial discretion is not working. Given the success of her book, the ironically-named “All In,” and her various television appearances, Paula Broadwell was by some measure a celebrity. Given the recent news coverage, she most certainly has attained that status at this point. Even with the best of intentions, a prosecutor may have been seduced at the notion of a publicity-generating case against such a high-profile target.

By its very nature, prosecutorial discretion depends on decisions made by individual prosecutors. And there are marked differences in individual prosecutors. A busy federal prosecutor in a major city may be less inclined to take a marginal case than a federal prosecutor in a slower jurisdiction. A new federal prosecutor trying to make a name for him/herself might be more inclined to investigate a high-profile target aggressively than a seasoned veteran who has already seen his or her share of big cases.

Admittedly, white collar laws have to be drawn broadly in order to permit federal prosecutors to combat the increasingly creative, technologically complex efforts of enterprising criminals. At least one downside of such broadness is that a large number of people may find themselves under federal investigation for conduct that can better be addressed in a different forum, or no forum at all. Most prosecutors, do, in fact, make rational decisions based upon the best possible expenditure of resources, the assessment of the jury appeal of a particular case, and the desire to maintain a good reputation with the bench and the bar.

However, prosecutors and investigators too often fail to recognize that they may view a case against a high-profile target differently than a case against an average citizen and should consider, in making charging decisions, whether the identity of the target is a valid consideration or not. The decision not to pursue criminal charges against Broadwell is perhaps a signal that discretion might be working after all.

Defense Attorney Still Questions Whether FBI Agent’s Text Messages Were Destroyed: Govt. Says It Did Nothing Wrong

By Allan Lengel
ticklethewire.com
The legal battle between the defense and prosecution is heating up in an undercover FBI sting into gun trafficking in the Philippines.

The battle began when deputy Federal Defender John Littrell in Los Angeles accused a a California undercover FBI agent of using taxpayer dollars to pay for prostitutes in the Philippines for himself and targets of the sting. The agent, in court papers, adamantly denied the allegation.

Then Littrell filed a motion last month alleging that the government only saved incoming text messages the FBI agent received from the targets, but didn’t save the ones that the agent sent out to the targets. Littrelle suggested the government may have intentionally destroyed the texts, which might be of  help in proving entrapment.

The government in a document filed on Oct. 24, said  that the undercover phone, which was a pre-paid phone purchased in the Philippines, was not capable of saving outgoing messages the agent sent to the defendants.

The government also noted that another phone used by the agent was lost in a cab in the Philippines and was not recovered.

“The government acted in good faith at all times, and there is no reason to believe that the agents’ outgoing texts were exculpatory in any way, particularly in light of the very incriminating nature of the defendants’ email, text, and other communications to the agent,” the government wrote.

But on Thursday, defense attorney Littrell, who represents one of three defendants, Sergio Syjuco, wrote in a motion:

In its opposition, the government admits that the undercover agent failed to preserve any of the outgoing text messages he sent during the 18-month investigation in this case. The government’s excuse for the undercover agent’s failure to preserve his outgoing messages from September 2010 to May 2011 (the “first phone”) was that  he lost the phone in a taxi in Manila. Its excuse for the undercover agent’s failure to preserve his outgoing text messages from May 2011 to January 5, 2012 (the “second phone”), was that the “undercover phone did not save outgoing text messages, and they are “not available on the undercover telephone.” The government does not explain why messages are unavailable on the second phone, and it does not attach a declaration from the agent. It does not rule out the possibility that the undercover agent deliberately lost the first phone, or deleted the messages or altered the settings on the second phone to prevent it from saving outgoing texts. The government says only that “there were no messages in the “sent” box.” This explanation is not complete, and it is not convincing.

The fight continues. Stay tuned.

3:10 to Marquette: The Manhunt and Capture of Vincent Loonsfoot in the North Woods of Michigan

By Greg Stejskal
ticklethewire.com

In the summer of 1988, Vincent Loonsfoot, an American Indian, drove to the Hannahville Potawatomi Reservation near Escanaba, Mich. There he ambushed and shot to death four members of his wife’s family and kidnapped his estranged wife. Loonsfoot then set off into the woods – beginning a highly publicized manhunt through the almost impenetrable forest of Michigan’s Upper Peninsula.

Michigan is made up of two peninsulas, the upper and the lower. The Upper Peninsula extends east from Wisconsin and is bounded on the north by Lake Superior. The Lower Peninsula, the bigger of the two, looks like a mitten. So Michiganders tend to point to their hand when giving directions.

The Lower Peninsula is bounded by Lake Michigan to the west and Lake Huron to the east. The shortest distance between the two peninsulas, the Straits of Mackinac, is where the two lakes meet at the top of the Lower Peninsula. For years the only way to get from one peninsula to the other was by boat or plane. In 1957 the Mackinac Bridge was finished allowing for car and truck traffic between the two.

Although the two peninsulas are now connected, they remain dramatically different. In some ways the U.P. remains the pristine wilderness immortalized in Longfellow’s epic poem, “Hiawatha.” “By the shores of Gitche Gumee….” was Longfellow describing the Lake Superior coast of the U.P.

Vincent Loonsfoot and his wife, Peggy, were living near Baraga on the Keweenaw Bay Reservation. An Ojibwa Indian Tribal Court awarded Peggy sole custody of the Loonsfoot’s 2-year-old daughter, based on a finding that Loonsfoot had repeatedly, physically abused Peggy. Peggy was afraid of Loonsfoot, so without telling him, Peggy moved with their daughter to Escanaba on the south/ Lake Michigan side of the U.P.

Loonsfoot followed her, but not being certain where she was staying, he staked out the home of her brother, David Smith, on the Hannahville Reservation near Escanaba. While waiting for Smith and his family to return, Loonsfoot used cocaine and drank beer. It’s not clear if Loonsfoot had a plan, but when the Smith family came home, he ambushed them. Loonsfoot shot and killed David, his wife and two of the daughters, ages 2 and 11. He wounded a third daughter, Amanda, age 10.

Loonsfoot driving the Smith’s car then forced Amanda to take him to the home where Peggy (Amanda’s aunt) was staying. There Loonsfoot kidnapped Peggy leaving Amanda behind. (Amanda would recover from her wounds.) Loonsfoot drove to a ski area outside of Escanaba where the car stalled. Then Loonsfoot set off into the woods with Peggy who was barefoot and 3 months pregnant. He had no provisions, and only the clothes they were wearing. He did have a .30 caliber lever-action rifle and some knives.

Because the murders had occurred on an Indian Reservation, the crimes fell under federal jurisdiction. The Marquette FBI office was notified. (Marquette is the largest city in the U.P. and is on Lake Superior.) When the Marquette FBI agents were able to assess the situation, they called the main Michigan FBI office in Detroit. It was decided that the FBI SWAT team would be dispatched to the U.P. to conduct the search for Loonsfoot and Peggy.

In the meantime State and County law enforcement were attempting to cordon off the area around Escanaba to keep Loonsfoot from escaping the area. The FBI SWAT team was flown to the U.P. in an Air Force National Guard C-130. I was a SWAT team leader, but was in the midst of a trial in which I was case agent and couldn’t deploy until it was concluded.

The SWAT team was on the ground and searching within 48 hours of the murders/abduction. The trail was cold and the woods extremely thick. Tracking dogs were able to pick up a scent. It appeared Loonsfoot was using railroad right-of-ways, but would periodically go into the woods to avoid detection. Trains leaving the area were searched. Aircraft were also used in the search, but they had not made any sightings.

Loonsfoot seemed to have been moving in a westerly direction from Escanaba. Making the search more difficult, it was the height of the blackfly season and the woods were full of voracious ticks. The SWAT guys made a game of picking ticks off each other at the end of the day – seeing who had collected the most.

There were several possible sightings of Loonsfoot and Peggy by local residents and reports of eggs being pilfered from local farms. Response to these sightings hadn’t resulted in any confirmation of Loonsfoot’s past or present locations.

The search had been ongoing for about a week when my trial ended. The following day I headed for the U.P. It was over 400 miles from my home in Ann Arbor to Escanaba, not as the crow flies, but I had to drive my Bureau car and cross the Mackinac Bridge to get there.

When I arrived in Escanaba, I saw some of the SWAT team guys near the County Fair grounds. I stopped, and they filled me in on the status of the search. They had just finished checking the area based on a sighting, but hadn’t found anything. They directed me to the command post.

At the CP I met with Jerry Craig, the over-all SWAT team leader. Jerry gave me a tour of the area, showing me where the murders occurred and where Loonsfoot had left the car and entered the woods over a week before.

I also learned that the full search would be terminated the following day leaving me in charge with 3 SWAT guys who volunteered to stay: Steve Hancock, Bill Randall and Chuck Smith. We would act as a roving patrol to respond to sightings or other indications that our quarry may be at a location. There was some doubt that Loonsfoot and/or Peggy were still in the area or were still alive. One non-SWAT agent at the CP suggested I be alert for congregations of crows or buzzards as it might be evidence of human carrion. A logical tip until you consider how many dead animals there are in the north woods.

The next day I had a sinking feeling as I watched the C-130 rise from Escanaba airport. I was now in charge of a 3 man team searching for an armed and very dangerous Indian and his hostage somewhere in the vast woods of the U.P. I went back to the CP. All the media and their satellite antenna trucks were gone. I reviewed the maps, checking the locations of the sightings, etc. It did seem most of the recent sighting, if they were accurate, were relatively close to town. But it was difficult to connect the dots.

I went to dinner with my team and explained to them what our mission would be starting in the morning. After dinner we all went back to our hotel knowing we would start early the next day. I had no idea how early.

At about 3 am, I was awakened by a call from an FBI supervisor, who had received a call from the Sheriff’s office. Loonsfoot with Peggy had just walked into the Sheriff’s office. Loonsfoot had indicated he wanted to surrender. I called Bill Randall, and we drove to the SO. The other two SWAT agents would follow as quickly as they could.

There was only one person at the SO, the dispatcher. He was in a room separated from the reception area by protective glass. The dispatcher did not want to leave his enclosure for fear Loonsfoot’s intent was less than honorable.

Bill and I approached the SO carefully. We were able to see Loonsfoot and Peggy sitting placidly on a bench in the reception area. We entered guns drawn and ordered Loonsfoot to the floor. He offered no resistance. We handcuffed and searched him. Loonsfoot was shirtless, and we noted with some satisfaction he was dirty and badly bug-bitten.

We also talked to and searched Peggy just to make sure she hadn’t succumbed to the Stockholm syndrome, when a captive becomes sympathetic with their capturer. Peggy looked very tired, but seemed to be in relatively good shape and relieved her ordeal was over. We had the dispatcher call for medical assistance for her.

Later that morning the agents from Marquette arrived to interview Loonsfoot. They would be handling the federal prosecution. I sat in on the interview as Loonsfoot was my responsibility until we turned him over to the US Marshal.

Loonsfoot matter-of-factly confessed to ambushing and killing the Smith family and kidnapping Peggy. It was as though he was discussing yesterday’s baseball game. He showed no emotion and seemed to have no regret.

He talked about his first day and night in the woods. He and Peggy had walked to a highway rest-stop west of Escanaba. There Loonsfoot waited all night for a car to arrive. If one did stop, he intended to kill the driver and any occupants and take the car. He waited all night for a car, but none stopped. Only an 18-wheeler pulled into the rest-stop, and Loonsfoot didn’t know how to drive a big truck. That truck driver will never know how lucky he was.

Loonsfoot never made it further than the rest-stop. He and Peggy had doubled back and spent the rest of their time on the run near town. He would retrieve scraps of food from garbage. One night when it was raining they slept in a dumpster. Loonsfoot was not a skilled woodsman, just an urban Indian.

During the interview, Loonsfoot looked at me and said: “I saw you a couple of days ago by the County Fair grounds. You were standing by a white car (my Bureau car) and talking to some guys with rifles, wearing vests and helmets. You weren’t wearing a vest or helmet. I had you in my sights and I was going to shoot you. But I knew if I did the guys with the rifles would have got me.”

Like that unknown truck driver, the angel of death had apparently passed me over too.

I asked him where his rifle was. He said it was in a field behind the grocery store not too far from the Fair grounds. At first light, Bill Randall and I drove to field and within minutes found the lever-action rifle. It still had a round in the chamber. That bullet had special significance for me.

When we got back to the SO with the rifle the media had returned as had the hierarchy from the FBI office in Detroit. There was also a crowd of local citizens many of them Indians.

It would be my responsibility to arrange for Loonsfoot’s transfer to Marquette where there was a Federal District Court and a US Marshal who would take custody of Loonsfoot for prosecution. Marquette is about 65 miles north of Escanaba. My concern was for Loonsfoot’s safety. I was feeling like Van Heflin’s character* in the movie, “3:10 to Yuma,” having to transport a notorious bad guy, knowing his gang was waiting to spring him. Only those Indians in the crowd outside didn’t want to help Loonsfoot to escape. They wanted revenge; he had killed most of an Indian family from their community. *In a later version of the movie the character was played by Christian Bale.

My plan was to use 3 vehicles. The two agents from Marquette would be in the lead car as they were familiar with the route. I would put Loonsfoot in the second car with the other 3 SWAT agents who would be armed with automatic weapons. I would be in the tail car with my Remington 870, literally riding shotgun.

I planned to load the cars in a big garage attached to the SO and then just drive out, en-route to Marquette. But I was overruled, as the media wanted a “perp walk” outside. We would just have to put a Kevlar vest on Loonsfoot, walk him to the car and hope there were no Jack Rubys (potential assassins) in the crowd. The whole transport operation went smoothly although I kept thinking about contingencies like a big tree lying in the road portending an ambush.

After turning Loonsfoot over to the US Marshal, we returned to Escanaba. The sense of relief in the town was palpable. There was no longer an armed killer possibly lurking in the woods. We went out to dinner and stayed to celebrate. We didn’t buy our own drinks all night. It seemed like every guy in town wanted to shake our hand and every girl wanted to give us a hug. I felt guilty about accepting this adulation having arrived late to the manhunt, but felt it was my duty to take one for the team.

Epilogue:

In December, 1988, Loonsfoot was tried before a US District Court Judge in Marquette. The Judge found him guilty of 4 counts of 1st degree murder, as well as kidnapping. In February, 1989, Loonsfoot was sentenced to life in prison with no chance of parole. The Judge could have imposed the death penalty under federal law even though Michigan has never had a death penalty.

Peggy Deleon (formerly Loonsfoot) is remarried and still lives in the Escanaba area. She gave birth to a son with whom she was pregnant at the time she was abducted. He is now 23 years old.