01 May 2015

04 April 2015

Death By Drugs: 2012 & 2013

Previous years: 2010, 2011(A), 2011(B), and 2014.

I thought I'd look to see where our death rates from overdoses are and found two Virginia ME reports that I had not previously done. Red is in top five for overdose deaths and deaths caused by legal medication (as measured by the ME: fentanyl, hydrocodone, methadone, and oxycodone - hereinafter FHMO). Yellow is only in the top five for deaths caused by FHMO.
2012 Overdose Deaths
2013 Overdose Deaths
2012 follows the pattern we've seen for years where FHMO have been killing people dead in higher percentages for a long time. However, 2013 is very different. To begin with, the municipalities which have the highest percentage of deaths are not the ones we are accustomed to seeing (except Dickenson County). Emporia and Martinsville are probably anomalous spikes and Charles City County may be as well. However, there's another interesting development. Deaths are not coming from the regular sources.

Top 5 (Overall Deaths)  FHMO  Heroin/Cocaine
1 Martinsville  (58.2)     21.8         14.5
2 Charles City County  (42.1)       28.1      00.0
3 Dickenson  (38.7)     25.8      00.0
4 Emporia  (35.8)     17.9      17.9
5 Patrick  (32.7)     16.3        5.4
All death rates per 100,000

You'll notice that in most of these municipalities FHMO and H/C do not add up to total deaths.  I think I know what the cause of the difference is. About this time is when the synthetic drugs really started hitting hard and some of them are truly nasty. Unfortunately, the ME does not seem to have statistics about them.

The top ten drugs that in the systems of people who died by overdose:

     2012           2013    
 1      Morphine  214      Alprazolam  290    
 2      Ethanol  252
     Morphine  283
 3      Diazepam  208
     Ethanol 249
 4      Oxycodone  197      Diazepam  234
 5      Alprazolam  192
     Oxycodone  207
 6      Heroin  163
     Heroin  161
 7      Methadone  115
     Cocaine  142
 8      Diphenhydramine  115    
     Clonazepam  134
 9      Hydrocodone  98      Methadone  119
 10       Citalopram  86      Codeine  117
 10       Cocaine  86  ~~~~~~~~~~~~~~~~
Diazepam includes its metabolite and heroin is measured by its metabolite.

Not sure where all the morphine is coming from unless the ME is counting people in hospitals who are in the late stages of painful terminal illnesses. Other than that, the rest of the drugs involved in overdoses seem to track with experience.  Alprazolam (Xanax) and Diazepam (Valium) are anti- anxiety meds.  Although Clonazepam (Klonopin) is described by the ME as an anti-convulsant, we see it most often prescribed as an anti-anxiety drug.  Citalopram is an anti-depressant that is also given to handle anxiety.  Doctors hand these happy pills out like they are candy on Halloween.  Ethanol is, simply put, booze.  Oxycodone and hydrocodone are narcotics used for "pain management."  Methadone can theoretically be used to handle pain, but it mostly used as a legal substitute high for illegal highs. Diphenhydramine is an addictive hypnotic medicine used in over the counter sleep aids.

Surprisingly, heroin has not shown an increase. I say surprisingly because in the last several years there has been a narrative stating that heroin dealers have cut their prices and increased their quality in order to compete with the pills. The wave of heroin is coming! And yet, it never seems to appear in significant amounts outside of its normal stomping grounds.

01 April 2015


I know that I don't usually post personal stuff on the blawg, but I'm more than a little peeved/perplexed/ upset right now and I have to vent somewhere.

The girlfriend broke up with me last night. There was lots of yelling and unhappiness until she left about 1 in the morning. There was a loud screeching/scraping noise when she left but I was not going out there because I know she keeps a pistol in her truck. I suspect I'll find my car keyed when I go out this morning.

It was a weird breakup. I've been broken up with for a lot of reasons: emotionally unavailability, too many ferrets, too old, too boring, too out of shape, unwilling to be that kinky ("No, I will not spend the next 4 hours tying you into the Yakumora ball of pain-pleasure. Why not? Because that's too frigging dangerous and if you end up in the hospital, or worse, Officer Smith is going to be questioning ME about why there were 3 nooses tied around your neck."), and of course the old favorite, "It's not you. It's me."

Last night was different. I hooked my phone to some speakers and started playing music. She just went batshyte crazy on me. She kept screaming at me about how I am obsessed with the Monkees. She threw my Monkees CD's on the floor and tried to do the same with Monkees LP's I have up on the wall. She did get the poster of their guitar logo off the wall and ripped it in half, but I half a couple dozen of those so it was no big loss.

There was a lot of Monkees hate. Before last night, I didn't even know she had a problem with the Monkees. In fact, I thought she saw it as a lovable quirk of mine. And, you know, for the first little bit I thought she was pulling an early April fools joke. I really thought she was joking.

Then I saw her face . . .

05 March 2015

01 March 2015

Plotting Vacation_2015 v. 2.4 (and ranting about Michigan)

Okay, so one of the things I do when I get stressed or bored is plot out potential vacations. I almost never get to take them, but I am determined that this year it will happen because by the time I can actually block aside enough time to take it (no possibility earlier than July) I expect that I will probably need it more than I have in recent years.

I discarded a possible train trip to Seattle (too expensive and impractical). I discarded road trips to Casper, Wyoming; Augusta, Maine; and circumnavigating Lake Michigan all because while I could make them if everything went right the schedule would be tight and there would not be much time to enjoy anything but staring at the road.

The latest version (Vacation_15 Version 2.4) is the trip to the left. The primary purpose of the trip is to go to Dearborn and get some decent Arabic food.  However, after a little thought I realized that wasn't going to fill a week and started adding other destinations.

The only catch so far is that (outside of when I stay in the Toledo/Dearborn/Lansing area) I had planned to do this vacation on the cheap by bringing a tent and camping, but it seems that Michigan is anti-camper.  Michigan requires those from out of State to pay a $31fee for the privilege of paying to camp on their parks. You read that right. You pay them money so that you can pay them money. The cost for putting a tent up without any amenities seems to be at least $20.  Taken together for three nights camping, that's $30 a night to sleep in a tent I have to put up and take down myself.  At each place Priceline and Travelocity can put me in any number of hotels/motels for about $40.  If I am willing to buy blind, Priceline has hotels for $30. Contrast this with Ohio where it is clearly cheaper to camp at $19 period.

That's ridiculous. I know the motels that I would end up in would be the lower end ones where you park outside your door, the room opens to the outside, and there's nothing inside but the bare basics.  That's still a place where I don't have to set up a tent, have electricity, and probably have restaurants and gas stations nearby. Heck, most of them even have wifi now. I don't get it. They want me to pay almost as much to get much less.  Maybe the lobbyist for cheap motels has the ear of powerful legislators in Lansing?

Anyway, the trip's a definite maybe right now. And if I go I'll probably be spending a fair number of nights at a place which leaves the lights on for me.

27 February 2015

Feds to Drug Courts: You Will Feed Their Addiction

In a stunningly senseless act of non-understanding, the federal government is going to try to force drug courts to give drugs to participants.

A while back, a member of our local drug court asked me to look at the requirements for a federal grant.  I was more than a little shocked when I came across a requirement that any drug court receiving the grant would have to spend a certain percentage of its grant on drugs for the participant (as I recall 20%, but I don't have the papers anymore). What the purpose seemed to be was to have participants use buprenorphine (subutex / suboxone) and possibly even methadone.  Needless to say, our drug court chose not to apply because this requirement is contrary to the purpose of the program: to help people become productive, drug-free members of society.  Shortly thereafter, I forgot all about that grant - believing it to be some sort of specialized grant with a specific type of court in mind that must exist somewhere else.

But, no, it turns out the federal government has decided to gut drug courts by requiring drug use to be allowed during the program.

"A spokesman for the Office of National Drug Control Policy . . . said that applicants for drug court grants will be required to affirm that they will allow access to medications such as Suboxone (buprenorphine) and will not force defendants to ween off the medication as a condition of participating in court programs."

The reason?

"Suboxone (buprenorphine) is a semi-synthetic opioid that eliminates an addict’s cravings, largely prevents overdoses and, if used properly, does it without causing intoxication. Its use to combat heroin and other opioid addiction is widely endorsed by the medical establishment."

Guess what?  It's not "used properly." A few years back, a doctor came to our county and gave all us attorneys and judges a lecture about the new wonderdrug that was non-addicting, couldn't be used to get high, and would stop all cravings for opiods: buprenorphine.  It was so wonderful that it solved all the problems that methadone treatment has and would supplant it. Unlike methadone (highly addictive, abused in its own right, and basically a legalized high substituted for an illegal high), buprenorphine's inability to make someone high meant it could be prescribed by doctors and taken home by patients without any danger of abuse or resale.  Of course, about 15 minutes after this drug started being prescribed by doctors the people who got it from them figured out what they could mix it with to get high and it has become a fixture as one of the top drugs sold illegally in our community.

Beyond the fact that buprenorphine is a readily and commonly abused drug, there are other problems with it being allowed for participants in a drug court. First, it is an opioid. That means that in drug tests it will trigger the opioid indicator - just like oxycodone, hydrocodone, and heroin.  I don't think most ready use drug tests differentiate (a hand-held test is only so sophisticated) and therefore samples would have to be sent off to the lab and one of the key premises of drug court is defeated (quick punishment for choosing to use).

On the other hand, let's assume I'm wrong about the ability of a hand-held test to determine the differences between different types of opioids (or that one could be easily developed or that there are already more expensive tests which could be used).  The next problem you run into is that since buprenorphine is an abused drug, you would have to test for quantity in a participant's system to see if the participant has more than should be there for mere inhibition.  Again, that means sending the sample to a lab to be tested and defeats the quick punishment for choosing to use (study after study after study claims that it is the rapidity of the punishment which is the most effective element in changing behavior). 

The Office of National Drug Control Policy needs to stop schlepping for whatever companies are selling this drug and whichever doctors are fronting for them (either out of a misguided belief that it can't and won't be abused or pure, simple greed). The reality is that if used properly this drug can be used to switch people off whatever drug their drug of choice is (just like methadone). Thereafter, the patient is supposed to be slowly weened off the substitute drug by getting lower and lower doses (just like methadone). However, no one ever seems to get actually weened off the drug (just like methadone).  As long as everybody keeps using the drug people keep making money. If you actually ween them off . . .

If the ONDCP really put some thought into this and wanted to incorporate buprenorphine usefully it would not demand that people be allowed to use it throughout the entirety of drug court.  Instead, it could mandate a pre-program. This program could be six months long and during that period doctors approved by the drug court could switch the participant from her drug of choice to buprenorphine and then ween that person off over the six months before they enter the abstinence based drug court proper.

The ONDCP's requirement feels like they are trying to do a good thing without taking the time to actually figure out how things work in the real world. Thus, they are doing more harm than good. Will some drug courts take their poison pill? Sure. Drug courts can be expensive and any money that is found from any source can be extremely helpful.  However, those who do will be poorer programs for taking the King's shilling.

19 February 2015

How Far Does Bail/Bond Extend?

Last week, I saw a bondsman answering a show cause.  The defendant had been found  guilty, sentenced, and given a delayed date to self report to the jail.  Shockingly, he did not follow through on his promise to self-incarcerate.  The judge called the bondsman to court to answer why the bond should not be forfeited to the court. The bondsman showed up with a lawyer (which was tres unusual and why I started paying attention) and the lawyer argued that after the sentencing the bond no longer existed and therefore could not be forfeit.  The judge looked on quizzically and then did what judges always do in show causes against bondsmen - he set the case off for a number of months to see if the fugitive could be found.

I was left wondering when exactly a bondsman's obligation ends, so I went and looked.  To begin with one of the conditions which a judge must consider in setting a bond is whether a defendant "will not appear for trial or hearing or at such other time and place as may be directed."  I suspect the "such other time and place as directed" is probably meant to cover things like reporting to pre-trial services for pre-trial monitoring (drug tests, etc.), but it is language broad enough to include reporting to jail at an ordered time. However, this is just information the judge is supposed to use to determine the defendant's bond not a description of the bond itself. Va. Code secs. 19.2-120 and 121.

You have to go back to the definitions to actually resolve this question.  Per  Va. Code sec 19.2-119, bail is "pretrial release" and bond is the posting of a sum of money as a condition of bail. Thus, it seems the bondsman's attorney was correct. Once the trial was over there was no bail and therefore no bond as a condition of bail.

The next question which came to my mind was whether bail extends from the period of the guilt/innocence part of the trial and the sentencing hearing (typically 2-3 months later). It's something of an ambiguity under the sections on bail - particularly since the General Assembly put trial under Chapter 15 of 19.2 and sentencing under Chapter 18.  However, a little more research finds a specific addendum to bail requirements under 19.2-298 "Pronouncement of Sentence": "Pending pronouncement, the court may commit the accused to jail or may continue or alter the bail except that in those cases where the accused is convicted of a murder in the first degree, the court shall commit him to jail and he shall not be allowed bail pending the pronouncement of sentence." Thus, even if the sentencing is not part of the trial a defendant can have bail pending it.

A more interesting question might be whether a judge or magistrate can authorize bail prior to a probation violation hearing under 19.2-306.  People on probation generally end up in jail one of two ways prior to their probation violation hearing. First, they are arrested by their probation officer under the old parole board powers (PB15); locally this is usually quickly replaced by a capias (bench warrant) and the PB15 is lifted. Second, they abscond  and have a capias issued for them to be brought before the judge. The Supreme Court of Virginia has been clear in stating that probation hearings are post conviction proceedings, not under the same rules as a criminal trial.  See Henderson v. Commonwealth.  I can find no statute specifically authorizing bail for someone facing a probation violation hearing.

Another approach to looking at the possibility of bail for a person with a capias for a probation hearing would be to look to the rules which apply to capiases. 19.2-234 and 19.2-80 require an officer who arrests someone per a capias to bring that person in front of a judicial officer for a hearing as to bail.  The judicial officer must then either admit the accused to bail or send him to jail.  Thus, it appears that it is from the capias which the defendant receives relief when a bail is given. This is the best explanation which I can find for the manner in which bail is currently given when a capias is served on someone for a probation violation.

However, the capias is not the basis for decision making in setting a bail. All that it does is order the person taken into custody and brought before the judge.  It can be for an indictment (which culminates in a trial), indirect contempt of court (which culminates in a trial), or a probation violation hearing (which culminates in a post trial hearing). Thus, there is no pre-trial release in a probation violation hearing and therefore no bail available. Thus, no judicial officer should grant a bail/bond on a capias for a probation violation.

Is this the way it works in the real world? Nope. Magistrates and judges put people charged with violating probation on bail all the time.  Maybe they know some of some statute I could not find authorizing it.  Maybe they just do it because everyone always has and no one has bothered to look at the statutes before.

28 January 2015

Being a Police Officer: The Safest Job Around?

Did you know that police officers have a safe job?

Apparently, a number of talking heads do. Or, at least it seems that way on some of the opinion shows I listen to. In the last month I have heard talk of how it is less dangerous to be a police officer than to be a random citizen of a major city and that more officers die from not wearing their seat belts than by the violent acts of a human.

It's always hard to tell where these memes come from. I think it's the last gasp of the Ferguson/NYC situations playing out. The last little bit of it concentrated on the demonstrators chanting for dead police and the whacko who killed the two NYC officers. If you speak to any officers you know that they also strongly suspect that this event triggered a number of other shootings around the nation. And finally we get the counter-argument that officers live safe lives.

It's also hard to lock down accurate statistics in this sort of thing because everyone is picking and choosing numbers which support their position or to make interesting headlines.  However, looking through various news articles, it appears violent police deaths at the hands of others in 2013 hit an anomalously low number somewhere around 30 and rose back to 50 in 2014 (1, 2, 3). Considering the number of people in police uniforms around the U.S., a country where everyone has the right to be armed, that's an amazingly low percentage. Still, the comparisons are fatuous and more than a little insulting.

The first time I heard this asserted was listening to Slate's Political Gabfest. I know. I know. I shouldn't be all that surprised that something like that would come from Slate. It even came from the person on the podcast who is the show's most unthinking proponent of liberal shibboleths.  Still, the assertion surprised me as being entirely unthinking. Then I blew it off as something which could only come from the leftiest of Slate's leftists.

And then I heard it again and again. Most recently I heard it on the Glenn Show on Blogging Heads.  As usual, Glenn Loury's discussion is more thoughtful, but his guest, who did not seem to have much connection with current events, made her point about how safe officers' lives are by pointedly stating that more officers die from not wearing their seat belts than from violent acts perpetrated upon them.

Correlation Does Not Equal Causation.

It's a basic lesson that everyone should have learned sometime back in school.  An example of this would be: firemen are present at 99.9% of house fires. Thus, there is a high statistical correlation between firemen and house fires. Looking at that statistic alone, you could conclude that firemen cause fires. The same sort of reasoning is going on here. Few officers die deaths at the hands of others ipso facto officers have a safe job.

Of course, the reality is different.  Anyone tasked with serving arrest warrants, responding to reports of domestic violence, and stopping drunk drivers, etc. is not living a safe life. They are facing significantly greater danger than the rest of us.

The difficulty is in quantifying that danger. This is because officers have at least three different interlocking (and sometimes conflicting) types of protection: personal, institutional, and clannish. Personal protections are the tools the officer has immediately at hand - his size and strength, his combat skills, his pistol, his tazer, etc.  Institutional protections are all the things which police agencies provide such as training, accumulated knowledge (shared via computer or radio), furnishing equipment shown most useful, etc.  Clannish protections are the least official, and can be the most problematic, but at a base level they probably provide the protection that your basic yahoo understands the best. If he shoots or beats up somebody wearing a uniform everyone else wearing that uniform, or a similar one, is coming after him with a vengeance.

So, if a yahoo were 60% likely to jump anyone who sticks their nose in his business, the likelihood that he jumps the 6'1" deputy responding to a domestic disturbance, who is informed by dispatch that the yahoo has convictions for prior violent crimes, and therefore has backup with him will usually drop a significant (but unmeasurable) amount. Let's say it goes down to 20%. The responding officer is still in a dangerous situation. And a street officer will be responding to dangerous situations like this several times a week - if not several times per day.  The fact that the officer is not injured does not equal the officer not being in danger.

Whatever other points one might wish to make - political, social, policy - claiming that officers don't live with the constant reality of danger is a weak pillar that leads to a weak argument on your part.

09 January 2015

Ambush in Bartlette: Chapter 36

Gil buried a smile as he watched the prosecutor arguing with the judge. Five minutes earlier, he started Monday morning by telling the judge that the defense was not going to present any evidence and that he was ready to begin closing arguments to the jury as to the appropriate sentence. Even if he wanted to, there was little evidence for Gil to present.  The man Gil was defending had lived a generic middle class, white, Protestant life. His parents had stayed married and provided a stable household. The man had a bachelor’s degree in law enforcement from some college in Tennessee and a masters from an online “university.”  He received an average number of commendations as a patrol deputy and after he was transferred into the Investigations Section he stayed there for years doing mediocre work until he eventually became the head of the section. Out of all that bland normality the only thing Gil’s psychiatrist had been able point to had been some minor conflicts with his mother and the possibility that the man was bottling up emotions while investigating violent crimes. It was weak and Gil knew it. Still, he had made do with less before - just not this time.

Not putting on any evidence was a gamble. If Gil was correct all the right thinking Christian jurors would came back with a sentence of life in prison so that their consciences would be clear on Christmas. Like most people in impoverished areas, these people took their religion seriously and you had to use any advantage the rubes gave you. If Gil was wrong and the jury returned a death sentence, he would face a habeas hearing in which another attorney would try to get the sentence thrown out by convincing a judge that Gil’s decision was a result of his incompetence as an attorney.  He would probably also face a bar complaint which could get his license to practice law suspended. All Gil had to do to avoid these threats was to put on a by-the-book, vanilla defense. He would lose, but it would protect his career.  But, that was not the way Gil was made.  You played to win or what was the point of the game? This was his best chance to fend off a death sentence and he was going for it.

Gil tuned back in as the judge agreed to put off closing arguments until ten thirty. As soon as the judge went back to his chambers, the prosecutor bolted for the exit to the courtroom. This time Gil let the smile show.


Brad was sitting at his desk scribbling a quick outline for a closing argument as his printer slowly chugged out the jury instructions he had written earlier, but not yet bothered to print out. After all, the defense should have been presenting evidence for at least a week. Who the hell doesn't present evidence when his client's life is on the line?

After Pinsky told the judge that the defense was presenting no evidence at all, Brad objected and argued to Judge Isom that it was an obvious ploy to throw the case on appeal.  If the defense attorney refused to present any evidence how could an appellate court not overturn the case? Every defendant - particularly in a death penalty case - is constitutionally entitled to effective representation from his attorney.  Judge Isom was surprisingly unconcerned by Pinsky's manipulation of the system. When Brad pushed the Judge had pointedly told Brad that neither the judge nor the prosecutor could dictate trial tactics to the defense and he was certain that his colleagues in the appellate courts would sort it all out.  In other words, sit down and shut up.

Then Brad tried to get the judge to delay closing arguments until Tuesday morning so that he could get jury instructions ready and prepare his closing arguments. He pointed out that he spent the weekend preparing to cross examine witnesses - not preparing for final arguments. The judge answered that the jury was already here and that he would not waste their time by sending them home. Then the judge gave Brad forty-five minutes to "go print out your jury instructions." At ten-thirty court was going to start and Brad would have to make his closing argument whether he was ready or not.


Jerome sat stunned. The defense attorney was refusing to defend Jeff Sanger's life and the judge was letting him. In a surreal twist, the only person who seemed to want the defense attorney to present the jury with evidence was the prosecutor and his argument to the judge lacked any moral concerns.  His only concern was that the case might be overturned on appeal.

Jerome knew that Pinsky prepared a defense. In fact, Jerome spent at least two hours talking with Pinsky's junior attorneys, Josh and Sal, about the contract the federal prosecutor signed and the Catholic Church's rejection of the death penalty.  In the course of that discussion they told him that they also had a psychiatrist who was going to testify about Sanger’s mental problems and that they had men from the Sheriff’s Department who were going to testify as to his mistreatment by superiors in the department. Maybe the jurors were bloodthirsty enough that presenting all of that would have made no difference, but Jerome had spent enough time in these mountains to know these were good people. Given a reason - given any reason - he was certain that they would not stain their souls by ordering a man to be killed.

Only, now they would have no reason.

25 December 2014

Ambush in Bartlette: Chapter 35

What is wrong with these people? 

Gil sat in his motel room eating dinner as he thought over the verdicts. Everyone in the courtroom knew his client was either guilty of all the murders or not guilty of all the murders. There was no middle ground. After all, they were all killed in the same place, at the same time, by the same people. Everyone who sat through the trial understood it was an all or nothing proposition - except the jury.

The manner in which the judge set up the reading of the verdicts was cruel.  He arranged them so that when they were read the defense would think that it had won until the last verdict was read.  As soon as Gil heard that first not guilty he had been exultant and that exhalation had grown with the reading of each not guilty that followed. Then came the first finding of guilt and, just as it began to sink in that the first conviction did not carry the death penalty, the second followed. That one did.  The thrill of victory was quickly and thoroughly crushed by the agony of defeat.

Gil was too much of a professional to let any of this affect his demeanor in the courtroom. While his emotions roiled inside he maintained a calm expression. When those emotions clarified into ire and indignation he maintained a calm expression. When he told the reporters outside the courthouse that he had no comment he maintained a calm expression. Even now, back at the motel, he was forcing himself to appear calm.

The client, of course, had imploded. Gil let the local attorney coddle the man as he gasped and sobbed in his chair, protesting his innocence. It was the most useful she had been throughout the entire trial. The man cried on her shoulder for five minutes even after the judge sent the jurors back to the jury room.

After things calmed down, Gil sent Josh up to do the “inconsistent verdicts” motion for a mistrial. It was a standard motion that was argued every time the jury returned some not guilty verdicts mixed in with the guilty. Gil always assigned it to whomever was filling the slot as his senior associate attorney.  As usual, Josh did a passable job. His due process argument was spot on, although it was weakened by that ridiculous cruel and unusual punishment argument he insisted on inserting every time. Of course, this time the motion had more punch to it because it was right. Still, no trial judge who wanted to get reappointed would have the intestinal fortitude to overturn a jury verdict in cases as important as those Gil tried. This judge was no different. He listened dutifully to the arguments and then refused to “overturn the will of the jurors in their role as representatives of the people.”  As a legal reason for upholding the guilty verdicts it was fatuous and yet, Gil knew the cravens in the appellate courts would find some equally fatuous reason to uphold it.

Now, Gil had to concentrate on the sentencing. Usually that would drag on for at least a week or two as the prosecutor filled the witness chair with witness after witness telling the jurors how terrible life was now that the dead man was gone followed by Gil filling the chair with witnesses telling the story of the psychologically crippling life events beyond the client’s control which inevitably drove him to the crime.

However, this time would be different, if for no other reason than that Gil wanted the jurors to deliberate before Christmas.  The judge had already said that court would be in session the nineteenth, twenty-second, twenty-third, and half of the twenty-fourth. If Gil could get the jury into deliberations on the twenty-second they might come back with their verdict before they went home for their high holy day. None of them would want to order the killing of a man right before they went home for that.


I am so tired of dealing with these hypocrites.

Brad had been dealing with this type of stupidity his entire time as Commonwealth Attorney for Bartlette. People constantly complained about how violent their community was and at least every couple months the Mountain Democrat printed a letter to the editor complaining that nothing was being done to stop violent crime.  Then, whenever the same people who complained were put on a jury they refused to convict anyone. If Brad prosecuted a domestic fight he was likely to lose because the government ought not stick its nose into family business. If he prosecuted a guy for stabbing another in a bar fight he was likely to lose because it was just two drunks acting stupid. If he prosecuted a murder he had to worry that the jury would decide the victim deserved it. 

It was a truism in the Appalachian mountains that there was only one real defense to murder: the sonuvabitch needed to get kilt. Rather than doing their jobs and simply deciding the facts, the jury had weighed the lives of the dead men and found that the Pahl brothers and the corrupt deputies got what they deserved. Then they weighed the life of Squire Tolliver and decided he was a lawyer who hung around thugs for a living so he knew he was taking the chance this sort of thing could happen. On the other hand, he was not a criminal himself so his murder merited some punishment - just not death.  Finally, they decided that there was no excuse for killing a man of the cloth. Luckily for Brad's case there had been no sensational stories about pedophile priests lately or they might not have been certain on that point.

Sitting in his office, Brad was trying to figure out what he was going to do in the sentencing hearing.  The jury's verdict wiped out eighty percent of the witnesses and evidence he had intended introduce.  All he was really left with was Squire's wife and daughters and he could not use their victim impact testimony to argue for the death penalty because the jury had only convicted Sanger of second degree murder for killing Squire.  And, of course, the Catholic Church had been less than thrilled to provide any aid at all for the prosecution of a capital murder case based on the killing of one of its priests. Consequently, he had no real evidence to present that pertained to the priest. He tried calling Martin Pahl to see if he would take the stand to testify for his dead brother, but Pahl absolutely refused and spent ten minutes yelling at Brad because it was Brad’s fault the jury refused to convict Sanger for the murder of Pahl’s rapist sons.

In the next couple days Brad was going to have to show the jury why they should impose the death penalty against Jeff Sanger.  And the only evidence he could technically use was that relating to the dead priest. Mainly, that boiled down to pictures of the priest lying dead on the ground and those were pretty tame for murder pictures.  He was hit in the leg and bled out; there were no gaping or ghastly wounds to show the jury - nothing that would really touch them emotionally.  In the end Brad knew he would be reduced to arguing that they should impose the penalty mainly because of who they killed. 

Tomorrow would start with opening statements in the sentencing hearing and Brad planned to call the members of Squires family to testify about the affect of his murder in the afternoon.  After the weekend, the defense would start presenting its evidence on the twenty-second. As best Brad could tell from the information provided before trial, Pinsky was going to call a bunch of psychiatrists to testify that Sanger’s mother did not hug him enough when he was a kid. Therefore, he should not get the death penalty for killing a priest as part of a continuing criminal enterprise. In any event, the defense’s case would probably take several days before both sides made final arguments and the jury retired to decide punishment.

There was a good chance that this case would spill over into the new year when Brad’s own personal Judas Iscariot would take his thirty pieces of silver. Judge Isom had already indicated that he would assign Brad as a special prosecutor if the case was still going on when Yusif Habib became Commonwealth Attorney at the beginning of January and Brad had an order ready for the judge to sign confirming that. 

Screw Yusif. He took my job, but he won’t stop Sanger from getting what he deserves.


Jerome watched as the forewoman handed the verdict forms to a deputy who then handed them to the judge. Judge Isom read through them and arranged them in a certain order before handing them to the clerk sitting at the desk next to his bench. The defendant stood with his attorneys and the clerk read the verdicts.

The first four verdicts were not guilty and Jerome could see the people at the defense to table getting excited as Brad Dollerby begun to slump.  Then came the first guilty verdict. Then came the second.  Jerome watched as Brad’s shoulders squared and the man regained his poise. At the same time Pinsky stiffened and Jerome saw his expression harden to granite. 

The defendant was not nearly as contained as the two lawyers. Jerome saw the surprise on the man’s face when the first verdict was not guilty. Hope blossomed with second not guilty and was stoked by the next two. Then it was stomped on by the final two guilty verdicts. The man turned to the female lawyer to his left. His mouth moved wordlessly for a second before he stopped, licked his lips and asked her “What does that mean?” Then, more stridently “What does that mean?” The lawyer said something which Jerome could not hear and the man stared at her for a second before slumping down into his chair. He put his hand over his mouth and tears started to run down his cheeks. He gasped for air and covered his face with both hands as he began to sob. The female attorney sat next to him and put her arm around him as one of the younger attorneys Pinsky brought with him put a box of tissue paper in front of the man.

Meanwhile, Judge Isom had the bailiffs return the jury to their room. After they left the judge let everyone sit until the defendant got himself under control.  Once the defendant quieted,  the judge called the jurors back out and dismissed them until the next morning. As soon as they were gone he turned to Pinsky. "Make your motion." 

Instead of Pinsky standing to argue, one of his assistants walked to the podium. The young man argued that the convictions should be thrown out because the evidence was the same on all counts and there was no logical way the jury could convict on some, but not the others. Jerome found the reasoning compelling. The judge saw things differently.

“Mister Schul, your argument is well made. It’s also entirely wrong. The jury represents the will of the people and as such, it is allowed to show mercy.  When a jury renders verdicts which appear on their face to be inconsistent, we are instructed by the appellate courts to assume - in the absence of proof of foul play - that the jury has decided to be merciful in its not guilty findings. It appears that the jury in this case could have found guilt in each count, but that they decided to show your client mercy in many of their verdicts. None of this is a reason to overturn the jury’s verdicts in the remaining counts. This court will not overturn the will of the jurors in their role as representatives of the people. Your motion is denied. Your objection and exception is noted for the record.”

After court adjourned for the day, Jerome sat in his truck’s cab and stared into the darkness.  The Church taught that mercy was more powerful than justice. However, Jerome doubted that the church fathers had ever thought that principle would be applied in such a corrupt manner.  Justice would have required the dismissal of the remaining charges against Jeff Sanger because it was unjust to convict him of two murders while not convicting him of four others which sprang from exactly the same acts. And yet, the judge left the convictions in place under an assumption that the four not guilty verdicts were based in mercy. And yet, there was no true mercy here for the defendant still faced the same possible punishment. The government was still trying to kill him. Nothing had changed.  Thus, both mercy and justice were corrupted. Worse, the government would now try to kill the defendant based solely upon the death of Father Pahl. Jerome huffed out a breath and started the truck. This was, as all things were, in God’s hands. He would surely place the true meaning of mercy in the hearts of the jurors to counter the false mercy of the judge.

10 December 2014

Ambush in Bartlette: Chapter 34

Jerome telephoned Bishop Mannion as soon as he got back to Saint Berlinda.  He hoped to get a new assignment somewhere as far from this trial as possible. Instead, the Bishop ordered him back to the courthouse "to sit in as prominent a position as you can and provide a reminder to the conscience of the jurors." Jerome pointed out that the jury selection process had removed all the jurors who claimed a religious objection to the death penalty, but the Bishop was of the "easy to say,  harder to do" school of thought and he was convicted that if Jerome sat in plain view it would make "harder to do" even harder.

So, the next day Jerome found himself sitting in the courtroom as the two attorneys made their closing arguments.  Trials in movies always showed loud, emotional closing arguments and the mock trials Jerome had participated in law school had been full of law students being clever.  In contrast, the real world closing arguments plodded along and were boring. Dollerby, as the prosecutor, went first and he went step by step, laying out everything that happened and all the things that connected Jeff Sanger to the murder,  He never raised his voice and never made a single plea to emotion. It was a coldly rational explanation of why Sanger should be convicted of the murder which took a little less than three hours.

Pinsky then stood and took his shot at the evidence. He wasted no time on the murders themselves, acknowledging them from the beginning and then ignoring the ninety minutes or so Dollerby had spent going over the forensics and the various deaths of the victims.  Instead, he piled a double heaping of scorn on the testimony of the “murderers who got their lives spared by the prosecutor as long as they got on the stand and said exactly what the prosecutor wanted.” He went on and on about how the actual murderers - the ones who pulled the triggers - were the only people who tied Sanger to anything and how the recorded conversations were nothing without their self-serving testimony. In substance Pinsky’s argument was much shorter than Dollerby’s; in actual time Pinsky’s argument was ten minutes longer than the prosecutor’s.

Then Brad Dollerby stood back up and, at least to Jerome’s mind, wiped away Pinsky’s argument in less than thirty seconds.

“If the recordings are meaningless, why did Ian Minor and Dave Jordan make them and keep them? These were evil men doing evil things - all of them. They pretended to be loyal. They pretended loyalty to the community they were supposed to protect while they brought drugs into it. They pretended loyalty to the law while they broke it every day. They pretended loyalty to each other while they recorded each other so they could do blackmail or use the recording to save their own skin. They didn’t record the defendant having tea with his grandmother; they recorded him saying things they knew they could use later.”

“That’s the short and simple answer to everything Mister Pinsky just spent hours saying.  Evil men do evil things for evil reasons and in this case they killed people. Jeff Sanger ordered those murders. Why? Because he wanted to be sheriff. Because he wanted to protect the drug dealers. Because he was evil. Hold him responsible. Find him guilty.”

The jury was out four days, returning its verdict on the eighteenth of December. When they returned the forewoman handed the verdict forms to the bailiff, who handed them to the judge, who arranged them and handed them to the clerk of the court. The clerk stood and started reading.

“In the matter of Commonwealth versus Jeffrey Sanger:

“Count one, aggravated murder of Kyle Pahl - not guilty.”

“Count two, aggravated murder of Justin Pahl - not guilty.”

“Count three, aggravated murder of Mark Carr - not guilty.”

“Count four, aggravated murder of Edward Boyd - not guilty.”

“Count five, aggravated murder of Keith Tolliver - guilty of murder in the second degree.”

Count six, aggravated murder of Theodore Pahl - guilty.”

05 December 2014

Ambush in Bartlette: Chapter 33

Brad watched as Father Tolton walked to the front of the courtroom and sat in the witness chair. The judge glanced down at him, speaking in a pro forma tone.

"Please stand and take the oath."

"No. "

That answer focused Judge Isom's attention. "Sir,  you are required to take the oath before you can testify."

"Your Honor,  I shall not be testifying."

The judge leaned forward, his face that mix of interest and sternness which judges get when someone starts doing something unusual in their courtroom. His  tone was bemused.

"Are you asserting your right not to incriminate yourself?"

Brad was already standing at the podium and he tried to intervene,  but Judge Isom waved him to silence.

"Father Tolton, are you asserting your Fifth Amendment right  not to incriminate yourself?"


“Then, are you claiming some sort of privilege not to testify?”

"No,  I’m not.  This court has every right to call me before it. But, I will not testify in a case that seeks punishment contrary to God’s will - the death penalty."

The judge sat back and stared into space for several seconds before he turned to face Brad.

“Counselor, we seem to be at an impasse. Your witness is refusing to even take the oath.  As I see it, we have two options. you can ask me to hold him in contempt and throw him in jail until he agrees to testify or you can ask me to declare him a hostile witness and we can all trust that as a man of the cloth he will answer questions truthfully even if not sworn. Your choice Mister Dollerby.”

Shit. The sonuvabitch is dumping the whole thing in my lap. Brad looked down at the questions he had written on his pad of paper, realizing that every bit of it was for nothing. Anything he did here was going to go wrong and the case could not afford that kind of hit. He looked up at the priest and forced a smile onto his face before turning back to the judge.

“Judge, the Commonwealth does not believe anyone is served by forcing the Father to testify. If we’d known he felt this way we would never have asked him to come to court. The Commonwealth asks that this witness be released.”


When the Judge dismissed Jerome he walked out of the courtroom and felt a huge weight lift from his shoulders. He knew that he should have been serene in his willingness to stand with God and the Church, but his base instincts never seemed to get that message and his nerves had been wound as tight as a drum.

God’s presence in the courtroom could not have been more clear. Jerome was allowed to state his objection to the trial in front of the jury and avoid testifying. He even avoided the jail sentence he had been certain was his lot when he entered the courtroom. The nervousness brought on by this certainty had been a large part of his failure to calmly place his fate in God’s hands. He had done it; honesty just compelled him to admit he had not done it with the complete trust he should have. And yet, despite his failings, God was there for him.

The only thing that confused him was the look on the defense attorney's face.  When he walked past the man he got a look that would have chilled ice water.  Jerome had seen angry men before and that attorney was the picture of barely controlled wroth. The attorney and Jerome had never been friendly. However, that look was a lot closer to hate than mere dislike.

Jerome walked right out the front doors of the courthouse. The last thing he saw while exiting the building was a bailiff going into the library to escort yet another man in prison orange into the courtroom.


Gil was driving down some road in the middle of nowhere. Of course, everywhere in these miserable mountains was nowhere. Still, this particular stretch of barely drivable road was worse than most.  As soon as court was over he left the courtroom, went straight to his car, and started driving. It was the only way he could get time by himself and he needed time by himself. When he finally came out of his fugue, he was driving on some tertiary road without a cell signal. It was dark, he had not a clue of his location, and no means to get directions. No matter, he had a little less than half a tank left and surely the road led somewhere otherwise it would never have been built. He would get back to semi-civilization eventually. With that thought he stopped paying much attention to his surroundings and let his mind wander back down the path it had been on for the last hour.

It had been one gigantic, well laid trap. When you came out to these podunk counties you expected to experience home cooking, but that was usually outbalanced by the locals’ incompetency.  Gil never let locals manipulate his case - at least not until this one. The prosecutor had known about the priest all along and led Gil down a primrose path to the destruction of his case.

He should have seen it at the start of the trial when the prosecutor did not call the priest as his first witness and again when the prosecutor did not call him as the first actual witness to testify about facts rather than forensics. It should have been more and more apparent as it became more and more clear that the prosecutor was holding the priest until the end of his case.

But, no, Gil had assumed stupidity rather than plan. He had been outmaneuvered so badly that he even helped build the priest up in the jurors’ eyes. The prosecutor asked any number of irrelevant questions from various witnesses with the sole purpose of putting the priest on a pedestal. None of them were the least bit relevant and yet Gil objected not a single time.  In fact, Gil wove several questions into his various cross examinations meant to elevate that pedestal. Of course, he was more subtle than some piddly little lame duck prosecutor. Nonetheless, he had worked with the prosecutor, lauding the priest until between the two of them they had elevated a relatively minor witness to a level that the jury had to see the man as the linchpin of the case. He had been so certain - so very certain - that he was playing the rubes. Instead, they were playing him.

And he never caught a whiff of it until that mummer’s play they put on in the courtroom today. Every one of them played his part perfectly. The priest made his noble stand, refusing even to swear the oath and facing down a judge who could throw him in jail. The judge asked just the right questions to make sure that the jury saw that the priest was making his stand based on his faith without a shred of self interest. Then the judge had given the prosecutor his own opportunity to appear noble. The prosecutor took up that mantle and made the beneficent gesture of asking the judge to forgive the priest his behavior because it was based on his heartfelt belief in God.

In the span of less than ten minutes Gil’s trial plan had suffered a massive blow. Weeks of investigation were rendered worthless. Worse, all the psychological spadework that Gil had put in with the priest became wasted time. Gil’s investigators and proteges had handled the priest with kid gloves, but Gil himself had been brusque with the man. He had pointedly refused to call the priest “Father” or use any title recognizing the man as anyone special. It was a technique that worked well with people who thought of themselves as superior or specially set apart and it had obviously annoyed the priest.  It had particularly irritated the priest when Gil refused to call him anything but Jerome during the pretrial hearing and Gil had planned to take full advantage of that irritation while cross examining the priest during the trial. He would have started by calling him Jerome and then switched to Andre. While the priest was flustered, annoyed, or angry Gil would have destroyed him. However, as the prosecutor never asked the priest question one Gil had nothing to cross examine him about and all the preparations were naught but a best laid plan.

And then the prosecutor delivered the coup de grace. Immediately after the priest left the courtroom he called the other man who had been in the hospital and heard what Mark Carr said, his brother Andy. In effect, the man testified for the priest. He told the jurors everything that went on while the priest was in the room and proved nearly impossible to impeach. The man had a minor felony record which the jury would almost surely ignore. He was also in jail for trying to kill one of the people he blamed for his brother’s death. However, he loudly denied that he was testifying in hopes of getting a better deal for his own crime. He was there “because it’s the only way I can get justice for Mark.” And Gil knew better than to think that the people out here would hold trying to get revenge for the death of kinfolk against a man. By the time it was all over the prosecutor got the priest’s imprimatur without actually putting the priest in a position that Gil could tarnish his moral authority and Gil’s chance at getting a not guilty verdict was gone.

Halfway around the curve of a mountain, the car’s headlights caught a flash of metal and Gil barely had time to slam on his brakes. The car stopped inches before a gate across the road. The gate had a big stop sign on it, a sign that proclaimed “Property of Hale Energy Services”, and two big no trespassing signs. There was no way around the gate and it was chained and locked in the center. Gil tried looking past it, but all he could see was the road continuing around the mountain.

He sat there for a couple minutes staring at the gate and then started to back his car down the road.  About half a mile before he almost smashed the car into this gate in the middle of the road in the middle of absolutely nowhere he had passed a spot wide enough to turn the car around without going off the side and dropping into some ravine never to be found again. It would probably take him an hour to back his car to that spot.  Then he would get back to the motel, stop moping, and do his job. The client was going to be found guilty. Now Gil had to do what he did in every capital case - fight to keep his client alive.

01 December 2014

Ambush in Bartlette: Chapter 32

On Monday Brad’s first witness was Grant Lasley, the Pahl attorney who had lost his arm in the ambush. He had planned to call Lasley toward the end of the case, but after Poplin’s performance on Friday Brad needed someone to put the jurors back on track. Lasley was a money grubbing bastard, but he had a gift when it came connecting with jurors and he showed up in full theatrical mode. Since the amputation he usually wore a long sleeve shirt and jacket with their sleeves pinned up to hide his damaged arm. Today he wore no jacket and his shirt was tailored so that the left arm had a short sleeve that ended two inches above the place the doctors had cut off his arm. As Brad questioned him Lasley made sure to keep his arm in sight and he waved the stump in front of the jury whenever he was emphasizing something he said.

Brad asked a few general questions and let Lasley weave his spell. After a brief explanation of why everyone was in the alley, Lasley started by describing the horror of seeing bullets tear into the Pahl brothers. Then he recounted the chaos as everyone else in the alley came under fire. He told them how he pushed Father Pahl to the ground behind the deputies and clung to the ground himself, helpless as rounds flew over their heads, hit the ground around them, and pinged off the big tank which the deputies were hiding behind. He ended his account with the sudden shock of the explosion followed by waking in a hospital in Tennessee with his arm gone.

By the time Lasley finished he had the jurors mesmerized. Brad returned to his chair satisfied that the case was back on track. Even Pinsky seemed to recognize that having Lasley on the stand was bad for his client. The only question he asked was whether Lasley had seen his client, Jeff Sanger, at the ambush. Once Lasley said “No”, Pinsky immediately stopped questioning and sat back down.  Jeff schooled his face not to smile as he asked the judge to dismiss Lasley and called his next witness.


Gil and the prosecutor had spent the last two days skirmishing over the self-serving testimony of the scumbags who worked for his client. Gil had won across the board and he liked how this trial was shaping up. Unlike most of his death penalty cases, there was a solid chance that this time his client might actually be found not guilty. It was too close to call at the moment and Gil was enough of a realist to know that no matter what the law said a jury on a murder trial would almost always find guilt if the case was close. Jurors were unwilling to take the chance of releasing a murderer back into the world. However, juries that convicted with some residual doubt almost never voted for the death penalty.

Gil's main hope for a not guilty finding came in the person of one Father Jerome Tolton. Or, as he was known prior to his mental breakdown, Andre Trevor Banks. Sitting at the desk in his motel room Gil clicked on the ten gigabyte file folder on his computer filled with reports and recorded interviews about Andre. It was by far the largest file on any prosecution witness and it made for an extremely interesting read.

From everything the investigators found, Andre was the poster boy for affirmative action. Third child of single mother from Norfolk, Virginia, he parlayed mediocre academic performance, white guilt, and Catholic “social justice” silliness into a full scholarship at some Jesuit University in West Virginia. Then he parlayed the same package into a law degree from Boston College.

Despite finishing outside the top quarter of his class, Andre had his choice of job offers from lily-white firms and he took a position at Spears, Allenby, Austerlitz, Evans, and Metcaffe.  Once there, he got buried in Wealth Management Services, writing wills for rich people.  By every account, he did a decent job, but nothing partner worthy.  Also by every account, the firm dragged him out whenever it wanted to prove it was in compliance with the diversity shibboleth. In fact, for three years Andre’s smiling face was the one you saw when you clicked the “Diversity” link on the firm’s web page. When Andre became a junior partner in his fourth year at the firm it was a defensive move, meant to keep him from taking a position he was offered at ClineBarton, where he would have become that firm’s face of diversity.

Less than a year after becoming a partner Andre snapped.  Gil’s investigator was never able to find any psychological records, but there were plenty of people who recalled Andre having long philosophical and theological conversations with a person who was not there. One paralegal the investigator interviewed recalled sitting outside Andre’s office for over an hour while he argued with an empty chair about transubstantiation.  However, Andre’s work remained constant and his oddities were tolerated until a senior partner and some important clients walked into a conference room and found Andre arguing heatedly with thin air about “the prayed for intercession of the church triumphant into the affairs of the church militant.”  That embarrassment, combined with a hefty fear that Andre was turning militant, led to a number of frantic emails between senior partners.  The only reason they did not fire him outright was the fear the firm would be labeled racist.  Nevertheless, within a week they put him on a two year “medical leave.” The termination package was amazing. Andre was paid his salary for two years and then given a fifty thousand dollar yearly stipend for a ten year period - all contingent upon not disclosing the terms of his separation.

They seemed to have assumed that Andre would go get psychiatric help. They were wrong. The first thing Andre did was change his name to “Jerome Tolton.” Then he shopped himself around until he got Saint Benedict the Moor church in Hampton, Virginia to sponsor him to a seminary in Cincinnati. Eight years later he came back to Virginia as Father Jerome Tolton and promptly became a hitman for the bishop in Richmond.

If Jerome Tolton showed up at your church’s doors you were in trouble.  To date he had closed five churches and reorganized another nine, resulting in the removal of seven priests and the indictment of a church secretary when Tolton found kiddie porn on the sole computer in the office of Blessed Sacrament church.  Gil did not entirely believe the secretary’s confession to the police; given the Catholics’ history, there was more than a passable chance that the secretary was taking blame to protect the church. Or, at least the jury would see it that way once Gil was through.

In reality, the priest would contribute little to the prosecutor’s case. The only thing the priest could testify to was the conversation at the veteran’s hospital and that implicated the other defendants, not Gil’s client. Yet, everyone in the courthouse knew that the  prosecutor was going to call Tolton. He would be called to show that the prosecutor was bringing this case with moral authority from God. The prosecutor had obviously failed to perform due diligence in checking the background of his  witness - as they always did.

Most of the people on the jury were white, Protestant, and either working class or poor. By the time Gil was finished showing them the crazy priest, who was an affirmative action baby, who worked against God by closing churches for a living, and who probably covered up yet another Catholic priest who wanted to bugger little kids, the case would be over. Gil would take the moral ground upon which the prosecutor wanted to base his case and burn it to the ground. Then he would salt the earth so that no conviction could be grown from it.


Jerome sat in the hallway outside the courtroom. It was Thursday morning and he leaned over his Vulgate and a Latin dictionary which were both sitting open on the chair next to him. Yesterday he had worked his way through three pages of Job.  Today, he was working on the first full paragraph of the fourth page when a deputy tapped him on the shoulder and told him he was being called as a witness.

Jerome stood and squared his shoulders as he walked through the doorway.  It was time to go do his duty as a servant of God.