Tuesday, January 21, 2014

Let Zebra One Know

For those who may not have seen, there is an extensive post on the website of Brandli Law detailing the entire sequence of events related to the Christmas hayride and the subsequent handling of the matter by the Sheriff's Office.

To read the entire post, click this link.  Below is an excerpt.
Deputy Menjivar went to his vehicle. Deputy Menjivar called dispatch to get information on Mr. McCutcheon, the truck, and the trailer. Deputy Menjivar made this call from his vehicle only two minutes after Deputy Korth arrived at the scene, about four minutes into the stop. During this call, Deputy Menjivar stated, "You might inform Zebra One [referring to Sheriff Nou] that this is going to turn into a complete FUBAR [a military acronym for 'F*cked Up Beyond All Recognition']." Deputy Menjivar's voice was strained on the radio. Carolers can be heard singing in the background.
A few minutes later, Deputy Menjivar stated on the radio from his patrol car, "Now the whole crowd is turning against me. Let Zebra One know that he is going to get a lot of complaints." The dispatcher responded that Sheriff Nou was listening to the radio traffic at the time.
A few minutes later, Deputy Menjivar exited his patrol car and began snapping flash pictures of the trailer and its occupants. Several of the younger children were crying during this time. Several witnesses report that Deputy Menjivar was sarcastically invited to take a picture of one of the crying children, and that Deputy Menjivar took a flash picture in the face of one of the children in response. The county provided no such picture in its response to our public record's request.
Deputy Menjivar then cleared the scene. As he told dispatch that he was clear, he said, "Let Zebra One know that he is going to get about thirty complaints lying about what happened."
Deputy Korth escorted the carolers around town and home.

Friday, January 17, 2014

The Mathematics of Today

A reader asked me to re-post the video of "Blink Your Eyes" by Sekou Sundiata because they felt it had some relevance to events in Friday Harbor. I've re-posted the link to the video below. Enjoy!

But while that story continues to develop, the business of the County moves forward. Our County Council is quietly proceeding to revise the latest update to the CAOs, in order to comply with the Growth Management Hearings Board (GMHB) ruling -- despite the fact that there is a court hearing about the GMHB ruling occurring in late February. Got that? It's so simple to follow the CAOs, isn't it? ... just like so many things about government.

When I was a kid, government was (or at least seemed) so simple. Cop, school, mayor ... that was about it. Now it is an incomprehensible mess. I'd be interested to know how many of the following acronyms you can identify, or if you have the vaguest idea how any of them influence your life.
  1. GMHB
  2. SMHB
  3. PSP
  4. AAOG
  5. LIO
  6. SMP
  7. CAO
  8. MRC
  9. ARC
  10. TAG
And ... if you are interested in providing comments to the latest revision on the update of the proposed new changed modification of the latest draft of the CAO modifications version, you have to get your comments into the County by February 3. Actually, providing comments is serious stuff, even if the process is mockable, sad, and laughable all at the same time.  The current Council is doing a miserable job at keeping the public informed about their work on the CAOs, but you should still make the effort to keep up because these looming ordinances will have a big effect on you.  Follow this link to find the latest draft.

Lastly, I want to reiterate a point I made in the comments. We are working on a new site that will allow readers to have greater control over the comments they see. We will always allow people to make comments of any kind, but it's clear (to me anyway) there are some commenters who are deliberately trying (and failing) to drive readers away by being troublesome. The antidote to that, in my humble opinion, isn't to restrict what people say, but to give readers the ability to filter comments so that you have a better chance of reading the good ones. The new site will allow you to make whatever comment you want, but also you will be able to filter comments to exclude ones with certain words or groups of words (e.g., profanity) as well as view comments according to a rating system that is also in the works.

Until then, enjoy the posts and the many good comments that are being made ... regardless of the ones that try to be destructive.

Wednesday, January 15, 2014

The View Of One Reader -- The Christmas Hayride

Followers of the Trojan Heron will remember that we have let readers, notably Kit Rawson, post here before. Now, since new information has come out about the Christmas hayride incident, one of our faithful Trojan Heron readers has asked for an opportunity to express his thoughts on the matter.  The following is from David Hume.

A few thoughts on the Xmas eve hayride incident (maybe it should be referred to as the Menjivar Snowjob). At this date, it’s important to remember that there is still much information that isn’t currently (and may never be) publicly available. That said, let’s consider the information that the Sheriff’s Department has chosen to spread, thickly, over the hayfield.

First, aside from Menjivar sa femme’s extremely ill-considered Facebook post [really, Facebook should come with an instruction book for dummies], Deputy Menjivar has made two public written statements regarding the Snowjob. More about the wife’s statement further below. Menjivar’s first, undated letter, published in the San Juan Islander, consists simply of an appeal to authority – he’s an expert, you have no business questioning what he does to guarantee your safety or how he provides it. If you liked Col. Nathan Jessup, you’ll love Felix Menjivar.
“Son, we live in a world with streets, and those streets have to be guarded by men with guns. Who’s gonna do it? You? You, Island Guardian? I have a greater responsibility than you could possibly fathom. You weep for McCutcheon, and you curse the Sheriff’s Deputies. You have that luxury. You have the luxury of not knowing what I know. That McCutcheon’s traffic stop, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. You don’t want the truth because deep down in places you don’t talk about at parties, you want me on those streets, you need me on those streets. We use words like “Drug Recognition Expert”, “DUI Emphasis Patrol” and “Collision Reconstructionist”. We use these words as an appeal to authority and a deliberate red herring to avoid the consequences of bad choices we make daily. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of fear our department creates, and then questions why creating that fear is necessary. I would rather you just bowed, scraped, and then backed out of the downtown area. Either way, I don’t give a damn what you think your are entitled to.”
Ignore the headline in the Islander (“Deputy Explains Christmas Eve Traffic Stop”), because the letter does nothing of the sort. You’re just supposed to know that Deputy Felix knows more than you. About everything, but mostly about public safety. And, oh Lordy, public safety was definitely in danger on Christmas Eve in Friday Harbor. What kind of danger? Grave danger. As if there was any other kind.

Not being satisfied with one red herring, Menjivar tosses out another: supposed cowardly attacks on his family. Presumably this references to the numerous responses to Menjivar sa femme’s now-deleted Facebook post. Since she chose to insert opinions into the public debate about her husband’s action, it’s really only fair that she should expect responses. Menjivar doesn’t mention whether there were physical threats or anything beyond the Facebook replies, if there were those are indefensible, but Menjivar specifically references if “anyone has a problem with my duties then address them with my supervisors and not my family. My family and I did not surrender our civil rights when I became a deputy,” making it sound as though he’s only referring to the Facebook responses. As to surrendering their civil rights, I don’t recall seeing anyone advocating that they should, however the attorney Felix hires for the civil suit(s) against him that may be filed may want to weigh in on the judiciousness of freely exercising those rights without first consulting an attorney. I imagine the deposition of Menjivar sa femme would be interesting. Wives with big mouths who’ve already inserted themselves into the story are often a goldmine. Hell, I imagine the depositions of Felix, Nou and Randy Gaylord would be interesting as well. [San Juan county taxpayers – BOHICA, this Snowjob could get expensive. Think “outside attorneys”.]

Couple of important things to note in Menjivar’s letter:
  1. He’s “spoken with Sheriff Nou [presumably about the incident] and will continue to arrest the impaired driver.” Interesting - Felix is, I think, implying that McCutcheon was driving impaired. Or maybe he just wants the reader to infer that from the wording. In any case, Menjivar clearly didn’t have any legal help when he wrote this particular letter. 
  2. Menjivar loves the appeal to authority logic argument that he drags it out again with the irrelevant argument that those who do not agree with what he did should “contact your legislators, they make the law. I took an oath to uphold all of the laws – I don’t have the luxury to agree or disagree with them”. Perhaps Menjivar could provide a cite to the relevant RCW requiring him to put his hand on his gun, as asserted by more than one witness – it’s a question I’m sure will be asked in any civil suit.
  3. Not being satisfied solely with the appeal to authority argument, Menjivar trots out an ad hominem argument, referencing the “small but loud” group of people in the county who don’t believe they should be subject to state law. Presumably he’s not talking about himself (although maybe he should include himself in that group), but he’s apparently implying (again) that McCutcheon is in that group.
  4. Felix appeals to us all to stop the “downright viciousness” – wonder if that includes tasering innocents? 
Next up in the hit parade is Sheriff Nou’s letter printed January 1st, containing few more details and another appeal to authority. I wonder if specious appeals to authority are a minimum job skill required to work in the Sheriff’s Department? Nou’s letter only contains a single paragraph that’s truly relevant to explaining the incident:
“Unfortunately, the stop turned into a confrontation. The deputy called for back-up, and they were able to de-escalate the situation. No one was hurt, and no enforcement action was taken on the infractions. A deputy followed the vehicle home making sure everyone got back safely. The contact lasted under 15 minutes, start to finish.” 
What’s been left out is more interesting than what’s in the verbiage. Thank God the deputies (“they”) were able to de-escalate the situation. The explanation as to who’d caused the escalation is so passive that it doesn’t even appear. Apparently it’s just one of those things that happen, like a virgin birth. Nou really could have made the Christmas tie-in of his explanation a little clearer for us non-Christians. But, things were fine until they were, you know, escalated. Then, praise God, the Deputies were on the scene. With their mad de-escalate skillz.

[Skipping ahead briefly to Nou’s latest statement, I’ll tip my hat to his use of the passive voice. “There was no violence or use of force, however, voices were raised and some of the children present understandably became upset.” “…the situation calmed down.” “The primary area of concern is how and why the situation became so volatile so quickly….” Masterful. Apparently the Sheriff’s Department can’t afford to buy any personal pronouns. Maybe they should take up a collection to get some. [Or maybe they could sell the video cameras they claim they’re not using.]

Nou reminds us how the employees in the Sheriff’s Office work long hours. Actually Sheriff, I see that twice a year when I write the check for my property taxes – reminding us during the Christmas season is just a tad painful. And not in the Christmas spirit. Nou also relates to us that he’s “reviewing the incident”.  I’m sure. Based on his (non)interest in addressing community comments last March related to traffic stops, I’m sure he was expecting just a whole gaggle of comments this time.

In a county of fewer than 16,000 residents, it’s not like aggrieved citizens are going to want to go on the record as filing a complaint against a Felix Menjivar for fear of what will happen in retaliation. Seriously, ask yourself if you want to file a complaint against an ARMED man who says “[t]here is a small but loud group of people in this county that [sic] believe they should not be subjected to the laws of the State of Washington because they live here or were born here, I hear it on a regular basis at my traffic stops.” If Felix hears it all the time, I’d be curious to know how that conversation got started and drifted there. Another question I’m sure would be asked during a deposition.

Actually, if Nou (and the council) had any interest in what the citizenry thought of the Sheriff’s Department, they’d create an ombudsmen’s office where people could make anonymous complaints. Most major companies use third party whistleblower’s hotlines for vendors and customers wanting to file anonymous complaints. It’s a service that costs relatively little and the yields are substantial – one study estimated that more than half of the employee fraud and abuses discovered over a period of years in one major corporation were uncovered by tips left with the whistleblower’s reporting line. That said, if the plan is to take the limited hangout route and not really do anything about citizen complaints, then I think the Sheriff’s Office has got that pretty much nailed already.

Really, Nou’s grade on dealing with the community is currently an F and heading lower daily. Note to the County Council and voters – when you’re considering electing or hiring someone who’s already retired from one career and got a great pension, please keep in mind that they often don’t really give a rat’s ass about what you think about them after you’ve hired/elected them. Might be exactly what you want if you’re electing a reformer who has no interest in getting re-elected, but keep it in mind. As an example, I give you Nou. And remember that when he runs for re-election.

Now we’ve got some version of the incident reports, all nine pages of them. I’ll leave you to read them on your own: click here. Interesting reading. I’m sure they’ll be filed eventually in the fiction stacks in the library. Some general observations. As noted in the Island Guardian, they’re too perfect to be the original entries for the incident reports. Not just the typing (even if it’s true that they’ve got some new fancy schmancy report generating system). Of all the incident reports I’ve ever seen, these are the most perfect – mostly whole sentences, mostly correct grammar, almost perfect use of appropriate punctuation (note the comma in the third paragraph, sixth line on page five of nine before the quote “I think it is …..”). I’ll submit to you that I doubt very very much that Felix Menjivar and Brad Korth wrote that. Not because of either of their ethnicities, but because I’ve never met a deputy whose grammar skills are that good. We are asked to believe that Felix wrote his incident report about sixty minutes after the stop. Not buying it. Which leads to the next question, if Felix and Brad didn’t write that, who did? And when? Let’s come back to that. But the question will surely be asked if they’re deposed.

Another thing of note is the thread running through both Menjivar’s and Korth’s reports is the supposed overt racism on the part of McCutcheon. I’ll be the first to say I’ve never met McCutcheon and for all I know he may be as racist as Bull Connor. However, in Menjivar’s original letter, Menjivar sa femme’s Facebook post, no mention of ethnic hostility was mentioned. Within a day or two of the incident, that McCutcheon was so upset that “a Hispanic Deputy has stopped him” that he was (presumably) shouting “I can’t believe my civil rights are being violated by someone who is not even from this country”, and incited the crowd to yell “racial slurs”, escalating until McCutcheon was “so angry he was shaking” apparently all disappeared in Felix’s memory (the Christmas season has that effect on my memory sometimes, but I usually chalk it up to eggnog and rum-soaked fruitcake). And we know that both of those statements by Felix and wife were relatively contemporaneous to the Snowjob. Now, lo and behold, we have something supposedly written less than sixty minutes after the original incident, a few days later for Korth’s statement – apparently he’s not as fast a typist as Felix – that ties the racial angle all up with a nice neat bow. The timing doesn’t make sense here – two relatively contemporaneous documents don’t mention the racial angle and then a supposedly real-time incident report not appearing for several weeks plays it up dramatically? Not buying it. Anyway, the kinds of questions I’d expect to come up at a deposition are: “What happened to the original incident reports?”, “Did you, Felix, consult with Brad before he wrote his report on December 30th?” “Felix, when did you re-write your incident report?” “Where are the drafts for the versions between the original version and the ‘official’ version?” “Did Randy Gaylord or anyone from the San Juan County Prosecutor’s Office consult with you or assist you in any way in writing this final version?” “Are there e-mails between you, Korth or Sheriff Nou and the Prosecutor’s Office regarding this incident?” “Did you consult with any other attorney regarding the preparation of your incident report?” “Do you understand what signing a statement under penalty of perjury means?” I’m totally guessing here, but I’d guess that someone helped Felix and that someone else helped Korth, but that everyone consulted before coming up with the final “Felix is the real victim here” story. Just to make sure that the story was good and tight. Having been handed this mess, I’d guess that there was a scramble to come with a story to try and contain the potential civil liability, particularly in light of Felix’s past history.

Which leads to my next question: At what point will the county decide it’s simply too expensive to have Felix on the payroll and throw him under the bus? The trend line of his “incidents” isn’t good and at some point he could end up killing someone. The civil suits stacking up over the last couple of years are a pain, but it’ll get real expensive if the bodies start stacking up. Most people knew that Felix had, how should we say this, “issues” with his own anger management a while ago. How long can the county afford to have an ARMED hot head driving around with a badge? From a civil liability standpoint, having multiple known prior incidents involving Felix where the incident just went and done escalated itself (to borrow Nou’s passive voice for a minute) means that if there’s ever a real SHTF episode involving Felix, the county is going to have to essentially just hand someone a blank check and ask them to fill it in themselves.

Basically, Felix and Nou want us to feel guilty that Felix supposedly had his feelings hurt. Horrors: someone who got pulled over on Christmas Eve was ticked. Remarkable. And Unexpected. Maybe it’s just me, but I think that there are a few jobs where you’re going to have to expect that a fair number of the interactions with your constituents are going to mostly suck: IRS agent, bouncer, traffic enforcement officer. People as sensitive as Felix might choose other professions guaranteeing a higher proportion of positive interactions: birthday clown, male prostitute, shoe repairman come to mind, I’m sure there are others. Probably a good idea not to combine any of those three into a single career though.

So, Menjivar sa femme posted the following on Facebook: “Felix wears a camera every night. Exactly for this purpose. Because people claim things happened a certain way and only a camera from HIS perspective shows how the other person is behaving.” [Emphasis added.]

Felix wears a camera. EVERY NIGHT. Interesting. More interesting is the report in the Island Guardian that Sheriff Nou:
  1. Didn’t know the Sheriff’s Department had been recording traffic stops,
  2. Didn’t know that the Sheriff’s Department even had cameras,
  3. Didn’t know who had the cameras that he wasn’t sure they owned,
  4. Didn’t know how to “download” any video that might be on the camera.
If some or all of this is true, probably Sheriff Nou should just resign. It’s not like the San Juan County Sheriff’s Department is the same size as New York City’s. That he’s been on the job as long as he has and doesn’t know any of this is sort of unbelievable. This whole video thing could generate some interesting questions in the depositions. Things like: “How many other traffic stops/incidents involving Felix were recorded?” “Were copies of those videos made available to defendants during discovery in their trials?” “If not, why not and at whose direction?” “Did Randy Gaylord know that traffic stops/incidents were routinely recorded?” [This is where it might get really interesting.] “What happened to recordings of this and other incidents?” There are probably some interesting issues as to any convictions obtained where evidence as important as a video of the incident was withheld from the defense. There are probably some interesting issues as to civil liability if there is no written policy as to the recordings. Felix might want to retain his own counsel. He might want to anyway, because if you kind of go through the game theory here, he’s the most expendable person in the chain. If anyone’s going under the bus, Felix is going to be first. If the cameras belong to the Sheriff’s Department, then the video files created almost certainly are public property. More interesting questions arise. Whoever is representing the plaintiffs in a civil suit, if any, probably should let the Sheriff’s Department know to set the camera and whatever medium it uses to record the files on aside – given how incompetent the Sheriff’s Department appears now, it’s unlikely that they could figure out how to truly delete something from an SD card, assuming the incident really WAS recorded, as Menjivar sa femme indicated was absolutely what happened.

Just another incident in small town rural America. This could get really interesting. The real losers here? San Juan county taxpayers – we get to pay for all of this mess.

Sunday, January 12, 2014

Just How Much Law Is There?

Given the consternation and debate in our islands over the innumerable laws that we are supposed to follow, I think the video below could be instructional. In it, you will hear a law school professor say that there are approximately 10,000 federal criminal statutes, but no one really knows for sure ... not even the federal government keeps track of the precise number any longer because there are just too many. I know an attorney who sums up our situation by saying that "between getting up in the morning and starting your car to go to work, you've probably broken three federal laws."

The entire video is 48 minutes, but I find it compelling. It presents the perspective of both a criminal defense attorney followed by a lifelong policeman.

This drawing is to scale. The dot (barely visible) shows the amount of San Juan County shoreline affected by the Mar Vista "clearcutting" relative to the total amount of shoreline in San Juan County (blue circle).