Chapter 10 – Policing in a Democratic Society

Note: The following is part of the series of full chapter excerpts from my latest book, a collaborative effort with television’s Cop Doc, Dr. Richard Weinblatt, Tasers, Abortions and Parenting: Behind the Curtain of Policing America.  Click on the title to obtain your copy of the complete book today.

“I have long said that it easy to police in North Korea and Iran.  It’s easy to police in a dictatorship.  But to follow Sir Robert Peel’s model and police people under the auspices of their consent, is much more challenging and problematic.  Case in point, everyone wants the laws to be applied- that is to everyone but themselves.  As a cop and later as a police chief, I’d get calls about speeders in a neighborhood.  We’d set up radar for speed enforcement and low and behold the neighborhood residents themselves would be nabbed.  But they wanted the law applied to outsiders, not to residents of the neighborhood.”

Dr. Richard Weinblatt, TV’s Cop Doc and the co-author of this book

There is to be certain an at times uneasy agreement between the police and a society eager to be free of crime which ultimately impacts all aspects of the relationship.  It is a shotgun marriage if you will.

Certainly in a Utopian society there would be no crime and hence no need for police with the use of deadly force as the ultimate show of order creation.  The equation comes down to which you want more: More Order with less personal freedom or more personal freedom and less order.  Of course, with less order, your freedom would be impacted by others (and presumably stronger or armed better) who would be inclined to exercise their own version of freedom.

Within the context of the above statement, one has to carefully weigh the delicate balance between the two, and in particular comments such as those expressed by U.S. Congressman Ron Paul who, on June 27, 2002 said in the House of Representatives: “Is America a Police State?’ My answer is: ‘Maybe not yet, but it is fast approaching.”

While we are all familiar with the term police state, what exactly determines the differences between a police and a non-police or democratic state?

Based on our research, the term “police state” was first used in 1851, in reference to the use of a national police force to maintain order, in Austria.

Up until that time, the idea of a police force becoming involved in the affairs of the public beyond interventions during emergencies was unheard of in the sense of maintaining order.

In the U.S. the first state police force was formed in Massachusetts in 1865.  Before then, U.S. towns often had a Sheriff who was called in to deal with specific incidences.  During the 19th and 20th centuries, as the existence of what is referred to as a standing police force came widely into existence, the term police state went through a kind of metamorphosis in that it was frequently used to identify the excessive use of force and the abuse of power that came to symbolize fascism and communism.

To put it simply, the primary difference with a police state in its present day form is that instead of serving the interests of the public, the force is used to control the public to ensure conformity with the interests of the government.  In essence, it is a tool of the government or dictatorship that oppresses rather than protects societal interest and freedoms.

There is no shortage of examples of police states throughout history including the notorious KGB in the former Soviet Union, the brutal SAVAK force in Iran when the Shah was in power and, the Ministry of Public Security or MPS in China.

The equivalent of the National Police Agency in Japan or national police forces in other countries, China’s MPS oversees several branches of law enforcement and state security such as the People’s Armed Police Force, whose primary focus is civilian policing and fire rescue duties.

Commensurate with the reality that law enforcement’s primary objective in China is to maintain order in accordance with the governing regime’s interests, the reference to a “Peoples” Armed Police Force is indeed an oxymoronic term because said forces’ do anything but serve the interests of the people.

Nowhere is this contradiction demonstrated more than at the provincial and municipal levels, where local forces are largely viewed as being ineffective in terms of responding to problems with a rising rate of crime.

Besides being undermanned, underpaid and poorly trained, up until 2006 the local forces were not even allowed to carry firearms, contributing to their muted capability in fulfilling their role as a protector of the public interest.

This rising crime rate combined with the ineffectiveness of the local police forces to stem the tide of criminal activities would seem to contradict the belief that a totalitarian state in which the public is largely submissive is easier to police.

Conversely, and as demonstrated by FBI nationwide statistics from 2008, which as referenced in an earlier chapter showed a surprising drop in crime from 2007, and a decline in homicide rates – which were at their lowest in four decades, one might reasonably conclude that the citizens of a free society are less inclined to commit crimes.

However, the steadily declining crime rate in America, which some experts maintain started as far back as the 1990s, has also been attributed to other factors including employment and the legalization of abortion.

One such example can be found in an April 2001 article in the Journal of Law and Economics titled “Identifying the Effect of Unemployment on Crime” by Steven Raphael and Rudolf Winter-Ember.  In the article, Raphael and Winter-Ember concluded that a “substantial portion of the decline in property crime rates during the 1990s was attributable to the decline in the unemployment rate.”

In terms of abortion, and citing the Donohue and Levitt paper that was referenced in an earlier chapter, a correlation between the legalization of abortion in the 1970s and the reduced crime rates in the 90s, would also seem to be a contributing albeit controversial factor as well.

So here is the question . . . to what extent does personal liberty influence crime rates and, is policing a democratic versus totalitarian state more or less challenging?  Of even greater importance is at what point can the balance between personal liberty and reasonable order be achieved and maintained?

Perhaps the foundation for providing an answer to this latter question can be found in a September 5th, 2010 article in the PI Window on Business Blog titled “The Constitution is not a Suicide Pact: The questions and perhaps answers regarding The Serial Suicide Killer’s First Amendment Rights can be found in a statement by Abraham Lincoln.”

Here is a reprint of that article in its entirety:

Life is often times filled with many ironies accentuated by the intersecting of seemingly unrelated events and elements that transcends both time and perhaps – at least on the surface, logic.

Let’s consider the case of William Melchert-Dinkel, who faces trial for coaxing two individuals over the Internet to commit suicide and, by his own admission, encouraging dozens of others to follow suit while having the audacity to suggest that they take their lives in front of their web cam for his viewing pleasure.

Taking into account the fact that Melchert-Dinkel violated Minnesota’s assisted suicide law, as well as the laws of the countries of which the two victims were citizens (Canada and the UK), one would not unreasonably believe that this is a fairly straight forward case.

Especially when even those organizations that advocate a person’s right to die and support assisted suicide such as Compassion and Choices (formerly the Hemlock Society), have distanced themselves from him as well as his actions.

However, and as those experienced in the law will tell you, rarely if ever is the route from trial to justice a straight one.  A point I had emphasized in my August 25th post “Is the Internet a Safe Haven for Serial Killers,” when I wrote the following:

“Given the complexities of the laws involving Internet crime, especially spanning numerous international jurisdictions, there is a very real possibility that Melchert-Dinkel may indeed walk.”

Citing everything from a violation of his right to free speech and what his lawyer Terry Watkins refers to as the vague use of the law and that as a result there is a lack of probable cause, an acquittal despite the admission and corroborating evidence could happen.”

It would appear that there are legal experts who would support Watkins in his position, as well as even those in the media such as Mike Masnick.

Masnick is the founder and CEO of the weblog Techdirt, which focuses on the news and issues associated with the high tech world.  He is also known for coining the phrase “The Streisand Effect,” which is a theory that is based on the belief that any “attempt to censor or remove a piece of information has the unintended consequences of causing the information to be publicized widely and to a greater extent than would have occurred if no censorship had been attempted.”  Sounds like a great story for another day.

With regard to the Melchert-Dinkel story, and in particular the vagueness of the Minnesota law, Masnick wrote in his May 14th, 2010 post Is It Illegal To Tell People How To Commit Suicide Online?;

“That “advises” part seems especially broad. Again, this is a tricky situation no matter what. It’s certainly difficult to defend this guy and his actions. But, there are larger issues here, concerning freedom of expression and a potentially overly broad law.”

Masnick’s statement immediately turned my attention to what I can only refer to as one of those intersecting ironies, in which a rhetorical phrase attributed to Abraham Lincoln appears to be both timely and applicable.  I am of course talking about the phrase “The Constitution is not a suicide pact.”

Given Melchert-Dinkel’s propensity for entering into “suicide pacts” with his emotionally vulnerable victims, while posing as a young female nurse, the Lincoln statement is eerily powerful.

The sentiments behind the term are based on the premise that constitutional restrictions on governmental power must give way to urgent practical needs.

For example, Lincoln used this statement in response to criticism that his suspension of habeas corpus during the Civil War violated the U.S. Constitution.

Throughout history, such collisions between individual rights and freedoms and protecting the greater good of societal interests are nothing new.

North of the 49th parallel for example, many older Canadians will readily recall the time that then Prime Minister Pierre Elliot Trudeau invoked Canada’s War Measures Act following the FLQ abductions of James Cross and Pierre Laporte, and the subsequent death of Laporte at the hands of his kidnappers in 1970.

Trudeau, who had long been a strong advocate of civil liberties, made the iconic statement that still echoes throughout the halls of Canadian politics “Just watch me” when asked by a reporter how far he would go “in the suspension of civil liberties to maintain order.”

Perhaps it is within the context of the willingness on the part of one of our civil rights champions to quickly impose Martial Law to serve the greater good of the nation that makes the strongest argument for those who sought Melchert-Dinkel’s extradition to Canada to face trial.

While there are rumblings that such an effort is currently underway, as it stands today The Serial Suicide Killer is going to stand trial in the United States.

In light of this present reality, U.S. history does give us possible insight into how the question of Melchert- Dinkel’s free speech may be viewed by a U.S. Jury.  Although, we should expand this contemplation of response to include the possibility of a Judge rendering a verdict as Nadia Kajouji’s mother, Deborah Chevalier expressed the belief that her daughter’s killer would likely opt for a hearing of his case before a judge only, versus a jury of his peers.

A good starting point as to what jury and or judge may consider is the Louisiana Purchase in 1803.

Even though Thomas Jefferson did not personally believe that the Constitution bestowed upon the government the “right to acquire or possess foreign territory,” he nonetheless signed the treaty.

His reasons, as he would later write, were based on the following;

“a strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.

To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

Using Jefferson as a point of reference, where is the greater danger to society in the case of Melchert-Dinkel?

In more recent times, Terminiello v. Chicago 337 U.S. 1 (1949) presents another compelling point of reference.

A Catholic priest under suspension, Arthur Terminiello criticized various racial groups and made a number of inflammatory comments during a speech to the Christian Veterans of America group.

During Terminiello’s oratory approximately 1,000 people had gathered in protest outside of the hall, and the resulting inability of the Chicago Police Department to maintain order led to his being fined $100 for violation of the City’s Breach of peace ordinance.

Even though the Illinois Appellate Court and the Illinois Supreme Court affirmed the conviction, Terminiello appealed all the way to the U.S. Supreme Court where Justice William O. Douglas ruled in favor of the priest whose anti-Semitic and pro-Nazi ranting’s had incited the riot in the first place.

In explaining his decision, Justice Douglas expressed the opinion that Chicago’s Breach of Peace ordinance had violated Terminiello’s First Amendment Rights.

Although Justice Douglas “acknowledged that freedom of speech was not limitless” referencing in particular the “fighting words doctrine” associated with Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), it did not in his opinion apply to the Terminiello case.  Not everyone agreed with Douglas’ decision.

One such dissenting voice was that of Associate Justice Robert Jackson, who in a 24 page response wrote;

“The choice is not between order and liberty.  It is between liberty with order and anarchy without either.  There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

This again raises the question with regard to the Melchert-Dinkel case . . . is a “doctrinaire logic” pertaining to the right of free speech overshadowing the practical wisdom to which Jackson was referring?

There is of course no shortage of case references regarding the rights of the individual versus the interests of society as a whole including Kennedy v. Mendoza-Martinez, in which Justice Arthur Goldberg wrote the court’s opinion that “laws permitting stripping draft evaders of their citizenship,” was “unconstitutional.”

I can even think of the 2006 book by Richard Posner titled “Not a Suicide Pact: The Constitution in a Time of National Emergency,” in which the Judge of the United States Court of Appeals for the Seventh Circuit and professor at the University of Chicago Law School wrote “the scope of constitutional rights must be adjusted in a pragmatic but rational manner.”

What the above examples tell me is that even though there is no doubt that individual freedoms are the linchpin of this great nation, the laws of self-preservation and of saving our country when in danger, balanced by practical wisdom in a pragmatic and rational manner would reasonably indicate that we possess another important freedom.  The freedom of choice!  A freedom which includes the ability to thoughtfully and intelligently apply the very laws that is there to protect us from harm.

In short, people make laws.  And through free will and good conscience, the laws exist to serve the people versus the people serving the law.

The only question that remains is not one of lofty legal debate but more specifically, what in both our individual and collective good conscience is a fair outcome for William Melchert-Dinkel and his victims Nadia Kajouji and Mark Drybrough?

In the above article we find that one of the major differences between a democratic and totalitarian or restricted society is in the fluidity associated with serving the best interests of the public.

While China for example adheres to a rigid model of compliance with government interests that is based on limiting personal freedom, in democratic societies such as the United States and Canada said freedoms are only contravened when there is a clear and present danger to the public as a whole.  In other words, and as demonstrated by the Canadian Government invoking Canada’s War Measures Act following the FLQ abductions of James Cross and Pierre Laporte, protecting personal freedom sometimes requires its limitation at least for a short period of time until safety and order have been restored.

It is therefore this elasticity that distinguishes a democratic society from those of a restricted society.  Much like the at times uneasy agreement between the police and a society eager to be free of crime as suggested by Dr. Weinblatt at the beginning of this chapter, a similar elasticity of give and take between law enforcement and the people it strives to serve must also exist.  Specifically, it is a matter of determining within what range or stretch relative to personal freedom or the limitation thereof that an effective balance between the two can be viewed as being both reasonable and acceptable.

In this regard, a certain amount of tension between personal freedom and maintaining order including the guarantee of national security should be welcome as a necessary means by which the ongoing integrity of both can be reliably maintained.

Along the lines of the old analogy that absolute power corrupts absolutely it is prudent to assume that unfettered personal freedom as Dr. Weinblatt rightly points out, will negatively impact order, and in the process ultimately result in less versus more freedom.

On the other hand, if the tension unduly favors the maintaining of order, the very nature of unchallenged state authority will eventually result in the total loss of freedom and ironically, as demonstrated by the escalating rate of crime in China, an overall decline in public peace and safety.

Of course identifying this zone of balance can in and of itself is a difficult task as outlined in the following excerpt from Brian Chapman’s 1971 book Police State (Key Concepts in Political Science):

Because there are different political perspectives as to what an appropriate balance is between individual freedom and national security, there are no definitive objective standards to determine whether the term “police state” applies to a particular nation at any given point in time. Thus, it is difficult to evaluate objectively the truth of allegations that a nation is, or is not becoming, a police state. One way to view the concept of the police state and the free state is through the medium of a balance or scale, where any law focused on removing liberty is seen as moving towards a police state, and any law which limits government oversight is seen as moving towards a free state.

As illustrated by the examples that we have already provided, Chapman’s any given point in time reference speaks to the fluidity of both the laws and their reflection of societal mores and/or sensibilities that we believe is critical to establishing the parameters for police intervention in the daily lives of the public.

It is only when these two elements are in conflict that the tension between personal freedom and maintaining order are tested.

One example of this contradiction of interests is Dr. Weinblatt’s story about traffic violations relative to speeding.

After a public outcry for police intervention to address the problem of motorists who would exceed the speed limit, radar traps as they are affectionately known were set-up to catch violators.  Low and behold, the very means by which the public’s concerns with speeding were addressed also resulted in neighborhood residents themselves being nabbed.  The irony of course is found in the double standard of those advocating police intervention in the first place who only wanted the law applied to outsiders, not to residents of the neighbourhood itself.

On a much larger scale, the conflict between public interests or wants and police enforcing the law of the land was demonstrated by prohibition.

As noted in Chapter 4, while prohibition was successful in “reducing” alcohol consumption, many believed that it tended to destroy society by other means.”

The reasons for this assessment can be found in the following excerpt from that chapter:

In his May 24th, 2010 article “The Demon Drink,” David Von Drehle made reference to Daniel Okrent’s book Last Call: The Rise and Fall of Prohibition (Scribner; 468 pages), and in particular the author’s observation that Prohibition proved “that if alcohol demoralized American society, outlawing alcohol was even worse.”

“The 18th Amendment,” he continued “made criminals out of casual drinkers, turned clergymen into cheats, encouraged doctors to practice deception and sowed the seeds of the Mob.”

While a review of Chapter 4 is probably a good idea at this time in terms of understanding the convergence of conflicting interests and morals that led to both the rise and fall of prohibition, what is ultimately more telling is that through this period of time, the freedom of American society not only survived but some would suggest matured.

Inevitably, what prohibition and other contentious laws such as the legalization of abortion and more recently the debate surrounding the legalization of pot demonstrate is that it is not through the absence of tension that personal freedom is maintained, but the manner with which said conflict is dealt, and how the experience is ultimately used to create a better society.

From a practical policing standpoint there are without a doubt numerous challenges, especially on the front lines of law enforcement.

While one might readily welcome the presence of police when their house is being burglarized, these very same individuals might look upon their receipt of a speeding ticket from the very same officer per Dr. Weinblatt’s example, as an unwelcomed intrusion.

The existence of this duality of personal interest puts the police officer in the middle of what can only be described as the irresistible force of the public’s demand to serve the public interest and the immovable object that is personal rights and entitlements.

So what happens when these two realities cannot be reconciled?  Many would suggest that a deference to what is known as The American Way of Life is the litmus test that can fairly and reasonable bridge the ongoing chasm between maintaining law and order supporting the public interest and personal freedom.

In a December 8th, 2003 article by Donald F. Walter Jr. titled “Mixed Martial Arts: Ultimate Sport, or Ultimately Illegal?” he wrote The so-called “American way of life” can be loosely defined as the morals and values that are commonly accepted to be part of the overall culture of America. These things include monogamous marriages, children’s rights, and certain standards of decency and obscenity.

Walter then went on to cite the first case in American history dealing with the rights of personal freedom and societal morals based on the premise of the “American way of life,” which is the 1878 case of Reynolds v. United States.

According to the Walter article, Reynolds was a Mormon man who claimed that he had a religious duty to commit polygamy, even though this was outlawed by a federal statute. The Supreme Court ruled against Mr. Reynolds, and in the opinion of the Court, Chief Justice Waite stated,

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Waite’s ruling reflects similar sentiments to those relating to the constitution not being a suicide pact.  However, and even using the American way of life as a guidepost to achieving the aforementioned balance, enforcing such rulings or standards is not always universally accepted such as in the case of the Branch Davidians, and more specifically the Waco Siege in 1993 where 83 members of the sect including its leader David Koresh were killed as were 4 ATF agents.

It should be noted that while some maintain that the there is a government conspiracy or cover-up regarding the circumstances surrounding the Waco tragedy, generally speaking the core issues which led to the siege were allegations against the group of sexual abuse and misconduct, as well as the stockpiling of illegal weapons.  In other words, the Branch Davidians used the cover of religious freedom to commit criminal acts.

This of course is the key point for the majority of Americans in that Waco has come to symbolize the abuse of the very tenets of the American Way of Life in that the interests and aims of the group appeared to be on a collision course with the general best interests of society as a whole.  The only question is to what degree this would have manifested itself in terms of having a tangible impact.

Nonetheless, lives were lost including 4 ATF agents.

Not all such collisions between the state and its people result in violence or deaths.

During America’s desegregation period, and in particular in the case of the enrolment of black students Vivian Malone and James Hood in the University of Alabama on June 11th, 1963, civil protest regarding a highly incendiary and divisive issue might very well have led to violence that day – it certainly did in other situations of a similar nature.  However, with the nation and in fact the entire world watching, cooler heads prevailed making Governor George Wallace’s stand at the doorway to the institution more symbolic than confrontational.

That said, whenever law enforcement whether it be local police or the National Guard are called in to enforce the will of the duly elected state, the possibility of tragedy is always a very real possibility.

Consider what became known as the Kent State massacre.

On May 4th, 1970 guardsmen from the Ohio National Guard fired 67 rounds into a crowd of students over a 13 second period.  When the dust had settled, four students were dead, and 9 others wounded – one suffering permanent paralysis.

The students, some of whom were protesting the American invasion of Cambodia during the Vietnam War, as well as onlookers who happened to be in the wrong place at the wrong time were perhaps the victims of an escalating crisis similar to that of an airline accident, in which a chain of events reached critical mass on the 4th.

The first round of planned protests actually took place on the Friday, May 1st when a group of 500 students gathered on the University’s Commons chanting “bring the war home” and burning both a copy of the US Constitution and one student’s draft card.

On Saturday, May 2nd the flames of a crisis were fanned further by threats directed towards city officials and local businesses, and rumours that radical revolutionaries were in Kent to “destroy the city and university.”

Based on a growing concern that local officials would not be able to handle future disturbances, Kent Mayor Leroy Satrom called Governor James Rhodes requesting the presence of the Ohio Army National Guards.

From that moment on, one might reasonable presume that the die in the sequence of events leading up to the tragedy was irreversibly cast.

By the time the National Guard arrived, the ROTC building was already burning with a large demonstration already well under way.

While no deaths were reported during this initial clash, several firemen and police officers were injured when the protesting students began to throw rocks at them.  Numerous arrests were made as the National Guard used tear gas to disperse the crowd.  One student suffered a minor injury from a bayonet.

Even though an emotional Governor Rhodes, who called the student protestors un-American, was not making a direct reference to the seminal 1878 case in which Chief Justice Waite first considered the reality of preserving the American way of life in his adjudication of the Reynolds v. United States case, he was nonetheless expressing a similar sentiment to that of the Chief Justice and perhaps in the process unknowingly legitimizing what was ultimately to happen on that fateful late spring day in 1970.

The Governor’s incendiary rhetoric, which included such colourful terms such as the students being worse than brown shirts (a Nazi paramilitary group), the communist element, night riders (or the KKK), and vigilantes ratcheted tensions between the establishment and students to a new level.

By the time the 4th rolled around, a combustible powder keg of imminent disaster was waiting for a simple culminating spark that would forever tarnish the National Guards image as the protector of national security, while simultaneously creating a state of grief and consternation in campuses and communities across the nation.

In the aftermath of these monumental examples in which a conflict between the need to maintain law and order and personal freedom collided with tragic consequences, one thing is certain . . . policing in a democratic society is an evolving process of changing scenarios in which the relationship between the police force and the citizens it serves experience ebbs and flows based on the imperatives and sensibilities of the day.

This conclusion even holds true in our everyday situations such as in Dr. Weinblatt’s speeding story.

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Chapter 9 – Lord of the Flies: A Metaphor for Schoolyard Justice?

Note: The following is part of the series of full chapter excerpts from my latest book, a collaborative effort with television’s Cop Doc, Dr. Richard Weinblatt, Tasers, Abortions and Parenting: Behind the Curtain of Policing America.  Click on the title to obtain your copy of the complete book today.

“Lord of the Flies is a novel by Nobel Prize-winning author William Golding about a group of British schoolboys stuck on a deserted island who try to govern themselves, with disastrous results. Its stances on the already controversial subjects of human nature and individual welfare versus the common good earned it position 68 on the American Library Association’s list of the 100 most frequently challenged books of 1990–1999.”

 from Wikipedia, the free encyclopaedia

During a 2010 interview, Larry Winget, television personality and five time New York Times/Wall Street Journal bestselling author of “Your Kids Are Your Own Fault” and “The Idiot Factor” made the comment that children establishing a pecking order in the schoolyards of America is as natural as Mom’s Apple Pie.  Well maybe he didn’t use the exact term Mom’s Apple Pie, but his point was pretty clear . . . kids, for lack of better reference will be kids.

Studies and polls such as a “U.S. 2004 poll of children, would tend to support Larry’s position.  With 86% of more than 1,200 9- to 13-year-old boys and girls polled saying that they’ve seen someone else being bullied, with 48% indicating that they’ve been bullied, and 42% admitted to bullying other kids at least once in a while,” one might even argue that it is a childhood rite of passage.

What is interesting is that bullying has just recently been recognized and recorded as a distinct criminal offence, which is a departure from the light-hearted view of college hi-jinx hazing portrayed in movies such as Animal House or a “boys will be boys” mentality that associates aggressive behavior with being a normal part of the adolescent experience represented by the character Flick in the Holiday favorite “A Christmas Story.”

The data in terms of criminalizing bullying would seem to support the elevation of consequences from a teachers reprimand to possible prosecution under the law.

To start, research shows that those who do the bullying are the ones who ultimately pay the greatest price in that “one out of four elementary school bullies have a criminal record by the time they’re 30.” As these children grow into adulthood, their prospects for success in later life are significantly diminished with many failing in school and ultimately never enjoying the career or relationship success that other people enjoy.

In terms of a broader societal impact a 2008 paper that was prepared by Deborah Doherty and Dorothy Berglund titled “Psychological Abuse – A Discussion Paper,” made the following observations:

Cost of inter-generational transmission of abuse. Dealing with the aftermath of individuals who learn and model disrespectful and domineering behavior to gain control over others creates significant costs for society. For one, schools must cope with the behavior problems of children emotionally traumatized by intimate partner violence as well as respond to the bullying tactics that these children may use on the playground. In the long term, these controlling tactics impact negatively in our workplaces, homes and communities.  Governments must address the range of factors that contribute to the inter-generational transmission of abusive behaviors by allocating significant resources in school settings for early intervention, anti-bullying and healthy relationship programs.

In fact so disconcerting is the growing problem of bullying in America, a U.S. Secret Service report went so far as to suggest that bullying had played a part in many school shootings, and then went on to emphasize that efforts should be made to “eliminate bullying behavior.”

The real question these reports raise is where do you draw the line between what we had earlier referred to as a childhood rite of passage and the destructive actions in which the impact overflows or extends into the fabric of American society as a whole?

Perhaps the best place to start is to first understand or define that which can actually be called bullying.  After all, the more common scenarios by which we define the term bully, such as at the school level, is not a new phenomenon in that it has been part of the human condition from the beginning of time.

Norwegian researcher Dan Olweus defined bullying as being when a person is “exposed, repeatedly and over time, to negative actions on the part of one or more persons.”  According to Olweus “negative actions” include a pattern of behavior in which a person “intentionally inflicts injury or discomfort upon another person, through physical contact, through words or in other ways.”

In other words, bullying can take on many forms including physical, emotional and verbal elements where there is a real or perceived “imbalance of power with the more powerful individual or group,” abusing those who are “less powerful.”

Interestingly enough, this can occur at multiple levels of societal interaction including the home, work or within entire neighbourhoods.  It even occurs on an international or global level.  For example, when one country exercises undue power or influence over another it is referred to as Jingoism.

So now that we know what bullying is, at least as defined by the experts, how do we establish a range of tolerance or acceptability?

Where do we establish the line, in which an individual’s or group’s actions go beyond the realms of a boys-will-be boys or girls-will-be girls shrug, to one that can be perceived as a bonafide threat either in the imminent future or somewhere down the road?

When do we in our reactions to a bullying situation depart from a sticks and stones attitude of a measured and practical response, to being one of the paper machè wimps to which Winget often refers – the kind that would put a cast on a hangnail?

An even more challenging question is how you establish a standard that makes sense across the board in which individual circumstances that would present mitigating factors risk being ignored.  At this point, the Casey Heynes story immediately comes to mind.

For those who may have like the Geico commercial suggests, been living under a rock or, were away from the planet for a short time in March and April 2011, the video of a rotund boy finally standing up to one of his tormentors went viral on YouTube.

Casey Heynes of course was the somewhat overweight lad in Australia who while being filmed took a few shots to the face by the much smaller but more aggressive bully.  Having been on the receiving end of both physical and mental abuse over several years, Casey finally stood up for himself and literally picked-up the bully and body slammed him to the ground.

Viewing this incident in isolation one might be inclined to suggest that both boys warrant disciplinary action from the school including a possible suspension.  But here’s the thing, the torment to which Casey was exposed on a daily basis, and which actually hit the critical point of tolerance when he told his sister that he was contemplating suicide, was being filmed.

If Casey had not made the choice to stand up for himself, while still being able to demonstrate tremendous restraint by walking away after the bully miscreant was disengaged by way of the pavement, the group of troublemakers would have posted a different kind of video to YouTube.  Would the humiliation from a prime time clip on the chubby kid clip have been enough to have pushed Casey over the edge re his contemplating suicide?

While we will likely never know the answer to this question, one thing is certain, the universal support for Casey reflected in the millions of people who viewed both the original video, as well as subsequent interviews speaks to the global interest and reach of the bullying question.

The Heynes case also highlighted the fact that generally speaking parents seem to have for the most part been asleep at the wheel in terms of instructing their children on proper conduct towards others, and in the process have abdicated their responsibilities for disciplining their children when they do cross the line from normal childhood discourse into destructive behaviour.

The schools of course are not equipped to deal with the growing problem, at least not on a case-by-case basis, but instead deferring to a zero tolerance policy that holds everyone – even the child being bullied accountable.

Once again we turn to the Casey Heynes case as a means of illustrating just how ineffective the school system can be in terms of dispensing discipline.

Casey, who has previously stated, had been the target of abuse over an extended period of time to the point that he like so many other children who face tormentors on a daily basis contemplated taking his own life, showed amazing restraint when he finally decided that enough was enough.

The bully, who was  playing for the camera of his friend, taunted and then punched Casey in the face at least 3 times, before the gentle giant as some have called him picked him up and threw him to the ground.  At that moment one might have reasonably expected the pent up anger and hurt that had been building in Casey as a result of enduring the verbal and physical abuse over a period of years would have seen him then pummel the bully.  Instead, Casey turned and walked away.

The school’s responses . . . suspend both Casey and the bully.  What kind of message does this send?

What caused even greater consternation was an interview that was given by the bully’s mother who while admitting that her son was wrong in what he did, went on to say that he is really a good boy and that she hoped that he would apologize to Casey.  Hoped?!  In this word and corresponding sentiment we find the perfect example of an absence of parental intervention.

Back in the day, if a child had pulled a stunt like that there would not be a question as to whether or not the aggressor would have to apologize, as most parents would have assisted their wayward offspring to the front door of the kid that had been tormented and ensured that an apology would have been forthcoming.

This of course leads to an even more controversial question which is when, if at all, should a parent be held responsible for the actions of their child?

Earlier in this book we had talked about the “Susan and Anthony Provenzino case, in which the couple was ordered to pay a fine of $1,000 plus court costs for their purported failure to in effect properly parent their son, which violated a city ordinance that “parents must exercise reasonable control over children under 18.”  The son, who abused marijuana, had a long history of committing burglaries in an effort to support his habit.

Holding parents accountable is based on a growing and strong belief which questions why society as a whole is made to pay for the poor parenting skills of those adults (emphasis on adults), who fail to provide the needed direction, care and love to their children.  After all, it is in most instances the parents who are ultimately to blame for their children’s’ behavior, and therefore should bear the greater if not full burden for the consequences of this absence of interest and involvement.  This is particularly true when it comes to the issue of bullying, as many experts believe that the origins of the problem can be linked to a troubled home life.

Perhaps, and similar to the Provenzino case, if parents are forced to pay restitution either financially or through their child’s removal from a school bus or the school itself, or even restricting Internet access  in the home, maybe just maybe the needed changes will take place.

In the case of Massachusetts 15 year old Pheobe Prince, who’s suicide has directly led to felony charges being laid against 2 boys and 4 girls aged between 16 to 18 years, the relentless taunting she suffered during the preceding 3 month  period in which there was no intervention from the school, should serve as a warning to us all both now and in the future.

As discussed earlier in this chapter, with 25 percent of elementary school bullies having a criminal record by the time they’re 30” if the problem of bullying is not addressed in the school yard, it will expand to our society as whole where the damage is calculably greater in areas such as a clogged judicial system and lost work hours.

In a May 23rd, 2011 New York Times article, it was reported that conditions in California’s “overcrowded prisons are so bad that they violate the Eight Amendment’s ban on cruel and unusual punishment.”

As a result, and in a 5 to 4 decision, the Supreme Court ordered the state to reduce its prison population by more than 30,000 inmates.

Operating at 137.5 percent of the prison system’s capacity, the article indicates that the current total inmate population is more than 140,000.  The 30,000 figure represents just fewer than 22 percent, so it is easy to imagine what the impact of effective preventative measures might be in terms of addressing school yard bullies while they are still at a young and presumably influential age.  Or as one grandmother used to say, little kids – little problems, big kids – big problems.

In terms of the workplace, and according to a July 2009 study, the impact of bullies in our day-to-day business life contributes to an estimated $180 million in lost time and productivity each year.

The study titled “The Cost of Workplace Bullying: How much is your corporate bully costing you?” by Catherine Michael Mattice, M.A. also referenced the Workplace Bullying Institute estimate that between “turnover and lost productivity a bully could cost a Fortune 500 company an astounding $24,000,000,” plus an added “$1.4 million for litigation and settlement costs.”

What is simultaneously interesting and disturbing is that the problems associated with bullying in the workplace have become so prevalent in American business that it has actually led to the creation of a method for calculating the tangible financial loss directly related to the disruption caused by a bully.

Regarding top-line considerations, GreatPlaceJobs conducted a study and found that companies who have been recognized as being a great place to work have on average generated revenues that were 30 percent higher than companies who were not identified as providing their employees with a healthy and happy work environment.

Even Wall Street recognizes the importance that workplace morale plays in a company’s success, as the same study found that stock prices were 10 percent higher for companies who have received awards as being great places to work, as opposed to those that have not.

So what is the next step in addressing the problems of bullying?

Perhaps this is another instance in which the Broken Windows theory championed by James Q. Wilson and George S. Kelling, who advocate fixing problems proactively when they are small (like children) would also make sense, as petty crimes and low-level anti-social behavior seems to have been deterred by their approach, coupled with an expectation that there will be a corresponding reduction in major crime down the road.

The problem of course with the concept of policing the school yards of America is that logistics of doing so, as well as the likely response from both parents and school administrators.  Allowing the police to intervene and possibly lay charges might very well be viewed as turning our education systems into a police state.

Similar to those situations where the police are called in to investigate the on-field or on-ice actions of professional athletes, such as in the case of Zdeno Chara’s recent hit on Montreal’s Max Pacioretty, or the notorious mugging of the Colorado Avalanche’s Steve Moore by Todd Bertuzzi, who sucker punched the player from behind and then landed on him causing a concussion, several broken vertebrae and facial lacerations.

Although Bertuzzi was sued by Moore in both Colorado and British Columbia, he was conditionally discharged by a British Columbia court.  The absence of a conviction in which the incident was compellingly witnessed by millions of television viewers as well as those in the arena’s stands speaks to the complexity and problems of police involvement in the more ambiguous realms of schoolyard violence.  This is especially true when minors are involved.

So if law enforcement is not the most effective means by which to address the issue of bullying, and the school’s ability to properly respond are muted by bureaucratic conflicts and political expediency, the onus must once again fall on the parents.

This brings us back to the question of holding disinterested parents accountable in a similar manner to those whose children commit criminal acts through the issuance of a parental order, which would seem to be the logical first step in reversing the bullying trend.

While highly controversial and likely to cause considerable uproar with some parents who lament that they are doing the best they can, Winget’s book (and books like it) should serve as the guidebook for defining parental responsibility in that it leaves no doubt as to who is responsible for doing what and when starting with accessibility.

Based on the 2004 poll, in terms of the differences between boys and girls, the results indicated that boys were “more likely to say they would fight back than girls (53% of boys vs. 38% of girls), whereas girls were more likely to say they would talk to an adult than boys (32% of girls vs. 19% of boys).”

This latter point about talking with an adult is a critical first step towards dealing with the problem, as open and meaningful communication with an adult should lead to a more level headed response either through direct parental advice or parental engagement with the school itself.  The key is that the child whether it be a boy or a girl, has to feel that their parents are in fact there for them with an attentive ear.  Something that doesn’t seem to be happening in America given Winget’s reference to another study which found that on average parents spend less than 3 minutes per week in meaningful conversation with their children.

Unless American parents wake up and face up to the fact that caring for their children goes far beyond putting a roof over their heads and buying them the latest electronics gizmo, the increase in incidents of bullying will likely continue to rise, and with it a further deterioration of our society as a whole.

In the case of bullying, it all truly starts and ends in the home.

30

Chapter 8 – Policing Terrorism

Note: The following is part of the series of full chapter excerpts from my latest book, a collaborative effort with television’s Cop Doc, Dr. Richard Weinblatt, Tasers, Abortions and Parenting: Behind the Curtain of Policing America.  Click on the title to obtain your copy of the complete book today.

“However, if we overreact to terrorist activities we could destroy many of the values for which we stand. No matter how tough, or draconian, the measures used by governments to combat the terrorists become, these measures will never successfully deter all terrorists. This can be validly inferred from the inability of a variety of governments, from democratic to tyrannical, to stop the terrorism currently being employed by radical Islamic and other revolutionary groups throughout the world.”

from Terrorism: The Role of Local and State Police Agencies by Edward J. Tully and E.L. (Bud) Willoughby

When one normally thinks of the rapidly expanding global marketplace we are often amazed with the manner in which a sole entrepreneur in Boise, Idaho can quickly and easily connect with a customer on the other side of the world.

This borderless reality, which we touched on in the previous chapter as it relates to policing the virtual environs of the Internet, reflects an accessibility that is at once both exciting and necessary.

However, and as if often the case with great promise, there is also a darker side to being part of a progressively shrinking world community . . . a vulnerability to terrorism and terrorist attacks.

For me as well as everyone else who vividly remembers the ominous 9/11 attacks on The World Trade Center, we lost a great deal more than thousands of lives that day.  I believe, and I know that I am not alone, we also lost our belief in the security of distance between the conflicts we have traditionally viewed on television from the safe confines of our living rooms, and with it a sense of invincibility that horrors occurring in places such as the Mideast were somehow too far to shake the foundations of where we actually live.

In essence, 9/11 was the ultimate wake-up call, and even though terror’s number one perpetrator Osama Bin Laden has recently been tracked down and killed, the terrorist threat from a splintered world in which extremist elements have the advantage of globalized mobility, being able to strike within hours has forever changed the landscape of policing at the national, regional and local levels.

In the article referenced in the opening paragraph for this chapter, which was written in May 2002 shortly after the 9/11 attacks, the authors from the National Executives Institute Associates indicated that “There are four major aspects involved in dealing with terrorist organizations.”

These include:

  1. gathering raw intelligence on the terrorist organization’s structure, its members, and its plans (or potential) for the use of violence
  2. determining what measures can be taken to counter, or thwart, terrorist activities
  3. minimizing the damage caused by terrorists through an effective rapid response and containment strategy
  4. the apprehension and conviction of individual terrorists and the dismantling of their organizations

While the authors stress the fact that the “problems caused by terrorism directed toward the United States are varied and complex,” requiring a collaborative effort at all levels of government (including local police), as the public we ultimately come to view these efforts as a nuisance and an unwelcomed infringement into the comings and goings of our daily lives.

A perfect example of this is the recent and persevering displeasure we feel towards increased security levels at our airports.

It is in this area of personal infringement that the 9/11 attacks seem to have a persistent and significant visibility that has kept the Transportation Safety Administration in the proverbial crosshairs of public discord.

It certainly doesn’t help that after a decade of heavy expenditures and the implementation of added security measures, the supposedly impenetrable wall of airport safety can be so easily breached by individuals who have the tendency to end up on the six o’clock news.

Going back to our 2002 article, in which the suggestion is made that had airport security been, turned over to local police agencies–with appropriate funding–the problems associated with airline security would have been solved a long time ago.

Of course stories such as the January 10th, 2010 article in the German English News site The Local, which reported that police were presently searching for a man who disappeared after traces of explosives were found on his laptop at Munich airport, or a July 13th 2010 claim by Airport Peace Officers Association president Marshall McClain that “budget and security cutbacks have made the airport “more vulnerable to terrorist attack than at any time since 9/11,” does little to support this position.

The fact is that no single branch of the law enforcement community can effectively police terrorist activity.  The reason is quite simple, when an attack occurs it may be localized in its area of impact but, it is global in its planning and coordination.

What this inevitably means is that we are only as safe as the weakest link in the global security chain, where jurisdictional responsibilities have to be better coordinated.  You need not look any further than the December 25th bomb scare on a flight into Detroit that originated in Lagos.

According to reports, twenty-three-year-old Umar Farouk Abdulmutallab purchased a ticket on Northwest Airlines Flight 253 with $1,600 cash.  On the flight’s final approach into Detroit, Abdulmutallab allegedly tried to ignite explosives concealed under his clothing using a syringe to inject triggering chemicals into a small bag of crystalline explosive known as PETN.  Fortunately his attempt failed, as the bag simply caught fire.

Here’s the thing, how was Abdulmutallab able to get the device on the plane in the first place, having had to clear security at both the Lagos airport, and Amsterdam airport, where the flight had made a stopover?

It seems reasonable to assume here that no matter of effective airport security whether it handled by the airport authority or local police in Detroit, would have made any difference had the young bomber been successful in igniting his explosive concoction.

This interconnected vulnerability in airport security means that cooperation extends well beyond our domestic borders to include effective security and policing practices in all parts of the world.  The question that remains unanswered is whether or not this is an achievable objective.  If it is, then how can it be accomplished and through what branch of law enforcement will it be executed on a front-line, real-world basis.

Conversely, if said collaborative certainty cannot be established and maintained, what measures much the country take to ensure the safety of its citizens both in the air as well as on the ground?

The question of air travel safety is not one that is going to lessen with time, as a 2009 report indicated that the Christmas Day bomb scare was the sixth terror incident aboard a commercial flight in the U.S. in 10 years, including 9/11. That works out to be about one attack for every 16.5 million flights.

Even though these statistics, especially when taking into account the total number of flights per day, every day year round, may seem paltry, it is reasonable to assume that there is likely going to be an increase in terrorist activity over time.  At least this is what Abdulmutallab himself had suggested when he told authorities that “other operatives are being trained in Yemen to launch new attacks.”

So what’s the answer?  How do you coordinate domestic readiness within the framework of a diverse and at times inconsistent international arena?

Considering the myriad of conflicting interests at the various levels of domestic government, an internationally coordinated undertaking would seem too daunting a task without first getting our own house in order.

One example of the apparent cross purposes within the national hierarchy was the advocation on the part of The Immigration and Naturalization Service (INS) in 2002 to authorize local police to arrest illegal aliens.  While some law enforcers laud the move, others decry it as encroaching on the primary responsibility of law enforcement to provide policing services for ALL in a justice is blind manner for all of the people (not just those that are legal).  Remember the iconic statue of lady justice blindfolded.

According to critics, this was nothing more than a political ploy on the part of the INS to shift the “monkey” from the back of the INS to local officials.

Since March 2003, when the INS ceased to exist under that name, the majority of its functions were transferred from the Justice Department to The Department of Homeland Security.

The shifting of national security policing to local authorities that had been proposed by the INS is nothing new, at least on the conceptual level.

In referencing the conflict between law enforcement and intelligence, Mark Riebling’s 1994 book “Wedge – The Secret War between the FBI and CIA” took local police involvement in national security a step further in urging cops to become “more like spies.”  Also referred to as Intelligence-Led Policing, rather than being met with resistance, the concept has gained considerable support from leading police associations nationwide.

It is ironically through the Intelligence-Led model, which purportedly builds on earlier policing paradigms such as community policing and problem-oriented policing, that local police involvement as part of a bigger national security framework may actually make the most sense.

It has been reported that Riebling’s Intelligence-Led Policing model leverages both Israeli counter-terrorist tactics along with the previously discussed Broken Windows policing theories, which means that an expanded engagement of this nature would not necessarily fall outside of the framework of normal policing practices.

What has been called a blended doctrine that incorporates problem solving, environmental design, community policing, and public-private partnerships means that police are now as much in the intelligence gathering business as they are in responding to criminal activity.

However, and despite the anticipated benefits associated with expanding police practices on the front-lines through the Intelligence-Led model, there are detractors of its practical application.

This includes what to some is a disconcerting blurring of the necessary distinction between national security and domestic policing or law enforcement, otherwise referred to as the state’s military and police function.

The blurring as it is called has in the past tarnished the nation’s police force with accusations of political interference, the violation of civil liberties and an increased potential for the “abuse of police power” due to the “secrecy that intelligence work entails.”  In essence, the important accountability to the public that law enforcement is in place to serve is reminiscent of complaints in the business community regarding The Patriot Act, which gives the Government the authority to access sensitive corporate data on systems that are physically within the United States.  As of the writing of this book, the trade-off between these two poles of contention favouring one over the other in terms of tangible benefits as yet to be established.

There are other issues to which critics of the Intelligence-Led Policing model point to including, information overload relative to the effective management and utilization of the increased intelligence that is being gathered through broadened funnels and, challenges associate with implementation based on the concern that police managers are reluctant to arbitrarily “have faith in the intelligence process” itself as well as in the “judgments and recommendations” of their intelligence staff.

Unfortunately this brings us back full circle to the question of effective domestic and international collaboration between law enforcement agencies at all levels, as a means of effectively and hopefully proactively responding to the growing threat of terrorism which can now take place anywhere in the world at any time.

Perhaps the first step is to take clear ownership individually over that which falls under the jurisdictional mandate and is within the competency scope of the law enforcement agency itself prior to making an attempt to integrate nationally and ultimately internationally.

From a logical perspective this falls in line with the authors’ conclusion in the 2002 article:

Consider if you will that you are the mayor or chief of police of a major city in the U.S. Your unquestioned legal responsibility is to provide safety and security to your citizens. In reality, however, you have sub-contracted this protection to the federal government and its various agencies. The safety of your citizens is now in the hands of people who do not live in your city and whose first responsibility is to the entire nation, rather than your city.

Both E. L. (Bud) Willoughby is the retired Chief of Police, Salt Lake City, Utah, and Edward J. Tully who retired from the FBI in 1993 after 31 years’ service emphasize the importance of local law enforcement assuming first the confident lead in their own jurisdictions when they write “It is intellectually indefensible for federal officials to assume that the higher office they hold confers upon them a superior intellect or judgment.”

Stressing their position that “for too long, state and local officials have acquiesced to the mediocre performance and conditions imposed by the federal government,” it is perhaps an obvious to assume the position that by pursuing this line of strategy will be the only way that the best interests of all stakeholders can be met individually as well as collectively.

To the authors’ credit, as well as a testimony to their vast experience and therefore understanding of the true complexity of policing and protecting a nation from the external threat of terrorism, Willoughby and Tully also indicate that this is a two-way proposition.

Specifically, and prior to making a demand for equality, respect, and performance from federal agencies, state and local officials must be able to give it in return.  According to the two law enforcement veterans, this means that state and local police agencies must be committed to hard work, additional training, self-discipline, and a firm commitment to the task. Anything less they contend, on the part of state and local police officers and managers will shatter any collaborative effort.  However, and even with the added give in return effort, it is still not uncommon for even local police chiefs to feel shut out of federal intelligence and security assessments and bulletins that could affect the safety of their city.

A need to selflessly collaborate extends beyond law enforcement to be certain, as Willoughby and Tully place an equal onus on other stakeholders within the political and bureaucratic arenas as well.

However, and on what they call the law enforcement front, the propensity for turf wars, petty personality conflicts, not sharing information or the workload–and the still unbelievable, selfish, insatiable quest by all law enforcement agencies and intelligence organizations to achieve public adulation for their successes–must cease.

This is not just a matter of doing what’s right, it’s as much a matter of people just doing their jobs and, doing them with the same level of commitment and sense of duty demonstrated by those who have lost their lives in the war on terror in places such as Afghanistan.

It is hard to argue with the articulated logic of Willoughby and Tully which invokes a sense of personal responsibility that should transcend individual interests and territorialism that often times undermines even the best intended initiatives.

But that was 2002 and we are now in 2011.  How have we and in particular, law enforcement progressed in their pursuit of the collaborative ideal?

A 2005 paper titled The Impact of Terrorism on State Law Enforcement: Adjusting to New Rules and Changing Conditions by the Council of State Governments and Eastern Kentucky University with a grant from the National Institute of Justice, would seem to indicate that key stakeholders are aligning their interests in terms of keeping America safe from terrorism.

According to the report, state law enforcement represents 10 percent of the total police employment in the United States.  Prior to 9/11, which the authors suggest served as a major wake-up call in terms of clarifying the true nature of the terrorist threat, law enforcement at the state level played an important albeit minor role in the “overall picture of policing in America.”

Post 9/11, and with the advent of homeland security, the role of state law enforcement has expanded considerably to include:

  • coordinating homeland security at the state level;
  • collecting, analyzing and sharing critical information and intelligence;
  • protecting critical infrastructure and key assets;
  • securing the nation’s borders, air and sea ports;
  • collaborating with federal and local law enforcement on task forces; and
  • preparing for new response equipment, tactics, systems and training.

Sounding very similar to Intelligence-Led Policing coupled with the creation of the Department of Homeland Security meant that preventing future acts of terrorism became national priority overnight for all levels of law enforcement throughout the land.

The report, which in and of itself is a worthwhile read, provides both statistical as well as empirical insight into the changing landscape of law enforcement when it comes to anti-terrorism measures.  One of the more interesting survey results indicate that state agencies are not only in the game, but in some instances are actually leading the charge.

For example, on the subject of state homeland security responsibilities, 75% of state agencies have either a great amount of involvement with or serve as their state’s leader for terrorism-related intelligence gathering, analysis and dissemination.

The paper then went on to state that findings from the same survey indicate that 50% of state agencies report a similar involvement in homeland security planning including the protection of critical infrastructure and the existence of an emergency response plan to terrorist-related incidents.

From the front-line officer standpoint, this shift in focus has had a significant impact.

To start, more than 70% of state agencies recognize that their on-ground police force have greater responsibilities as it relates to intelligence gathering, investigation methods and their response to emergency situations.  This coincides with Mark Riebling’s assessment that when it comes to the possibility of a suspect’s connection with terrorism, local law enforcement is less concerned about any possible criminal activity of the individual, than with preparing intelligence reports on their movements.

The example Riebling cited to support his position dealt with an Israeli police raid on a Tel Aviv bordello. Israeli law enforcement was purportedly more interested in the largely Arab-national patrons and how they got into Israel than they were in the criminal activity associated with their presence at the house of ill-repute.

This raises an interesting question, or perhaps dilemma would be the more appropriate term.  Is the focus on intelligence gathering going to trump maintaining the local laws of the land?  While the bordello example does not convey the same consequences in terms of serving and protecting the public interest in that it’s operation does not in any really sense impact the day-to-day lives of ordinary citizens, what about a potential conflict when other, more direct impact crimes are committed?

Will what some contend is an already overburdened police force be forced to choose between national security and the effective enforcement of local laws that might otherwise have taken priority had a terrorist link not been established?  In other words, is there a point of conflict in which serving the interests of one has a negative impact on the other?

With state and municipal budgets already placing many governments on the brink of bankruptcy for the first time since the Great Depression, this polarizing scenario is likely to become even more relevant and challenging as time progresses, especially with an adherence to an “all crimes” approach.

It is a reality of a rapidly changing world that The Impact of Terrorism on State Law Enforcement paper presents the concept known as the “all crimes” approach to law enforcement.

Recognizing that state police are faced with many competing public safety and law enforcement priorities; they are struggling with incorporating the new terrorism-related demand into the existing crime-fighting framework.

To address this apparent gap, the paper proposes a dedicated-personnel model, which is based on the assumption that terrorists and terrorist-related activities are not (emphasis on not) closely tied or linked to more traditional criminal activity such as financial crimes and drug smuggling.

Putting aside once again the issue of constrained budgets – who after all is going to pay for this dedicated force (ascribed by many as yet another unfunded mandate), advocates for the dedicated-personnel model stress that the stakes are much higher when fighting terrorism, with far greater and reaching consequences should a breakdown occur than it is with the enforcement of everyday laws.

Proponents also suggest that creating a force with clearly defined responsibilities at the state level to battle terrorism will also prevent “mission creep,” thereby eliminating the potential for possible conflicts in terms of policing priorities.  The risk of mission creep is especially high they argue, based on the performance metrics by which a force’s effectiveness is measured.  These include quantitative factors such as the number of arrests and prosecutions.  The conflict with these types of metrics, the paper’s authors point out, is that “three years could pass before one state-level arrest is made related to terrorism.”

Although we could at this point digress into an analysis of the present day metrics used by law enforcement to quantify their overall effectiveness in serving the public interest, as well as how said measurements could be expanded (and blended) to include anti-terrorism policing, the focus of this chapter is on practical execution and all that entails.

By confining our research to the real-world aspects of anti-terrorism law enforcement practices, we are in a much better position to understand its impact on the everyday lives of the public.  This includes establishing the points of commonality or shared impact between what has been termed as traditional criminal activity such as illegal drug operations, money laundering and identity theft and possible terrorist activities, much of this emanating from within our borders than from without.

With regard to the latter, it has come to light that the terrorists involved in the 9/11 attacks had previously been cited for traffic violations, as well as obtaining and using false or fraudulent driver’s licenses.

Based on this, many experts believe that there is a “high probability” for law enforcement to identify potential terrorists and terrorist threats through their involvement in the commission of traditional or lower level crimes.

As a result, the removal of artificially established silos of criminal activity means that law enforcement can create multiple points of pressure which some experts believe will make the terrorists vulnerable in that they will be forced to behave like fugitives as opposed to operating in obscurity until an acute crisis manifesting itself in the form of a terrorist act occurs.

Similar to the “all hazards” approach for emergency response and preparedness, the “all crimes” approach has a great deal of merit in that it does not require a hard shift of attention or response on the part of individual law enforcement agencies within the context of definitive criminal acts.  In other words, and perhaps the best illustration of the effectiveness of the Intelligence-Led Policing methodology, police officers at the state and municipal levels will be trained and encouraged to look beyond the immediate crime that is committed to determine if there is indeed a possible link to terrorist activity.

This refocusing of the lens through which law enforcement views the commission of crimes is also in line with the perceived changes in the day-to-day work of local police officers in a post 9/11 world.

To begin, there is today a heightened awareness of suspicious activities and their possible link to a terrorist threat to our national security, prompting officers to look at criminal activity through a much more scrutinizing eye.

In conjunction with expanded awareness, is the increase in the level of training police officers receive as it relates to emergency responses to conventional, chemical, biological and radiological attacks.

In the end, and regardless of what recommendations are ultimately implemented relative to achieving the much needed balance between domestic law enforcement requirements and the protection of national interests from external, terrorists attacks, there is little doubt that cooperation of law enforcement agencies at all levels is a prerequisite for success.

Or as Sheriff Al Cannon of Charleston County, South Carolina so aptly stated, “Terrorism prevention and response requires law enforcement agencies at all levels to work together, exchange information, train and coordinate efforts to a much greater extent than has ever occurred.”

30

Chapter 7 – Cyberspace and the Borderless Crime (A Case Diary)

Note: The following is part of the series of full chapter excerpts from my latest book, a collaborative effort with television’s Cop Doc, Dr. Richard Weinblatt, Tasers, Abortions and Parenting: Behind the Curtain of Policing America.  Click on the title to obtain your copy of the complete book today.

“The basis for the assimilation or perhaps reconciliation of virtual and physical realities in terms of law enforcement starts with the basic premise of criminal law, which as Susan Brenner who is the NCR Distinguished Professor of Law and Technology at the School of Law stated in a May 6th, 2009 article, is about “preventing the infliction of harm.”

Susan Brenner, NCR Distinguished Professor of Law and Technology at the School of Law (May 6th, 2009)

The basic premise of criminal law is a key tenet of Brenner’s in terms of distinguishing between physical and virtual criminal acts.

While Brenner, who went on to say that “we should not simply assume criminal conduct vectored through cyberspace represents an entirely new phenomenon, i.e. cybercrime,” as it may represent “nothing more than the perpetrators’ using cyberspace to engage in conduct that has long been outlawed,” would seem to support a unification of the real-world and Internet realms when it comes to the universal application of laws, hers is not necessarily a clear cut proposition.

Specifically, Brenner contends that the disconnect between societal sensibilities or morals and the technical aspects of law that lead to conflicts in the physical world do not simply disappear in cyberspace.  In fact, and if anything, the introduction of the virtual element creates even greater confusion.

As a result, and based on the providence of timing, rather than viewing the question of cybercrime through the hypothetical posturing of academic debate, in this chapter we will examine through a series or diary of articles one of the most controversial Internet cases in recent memory.  We are of course talking about the case of the Serial Suicide Killer William Melchert-Dinkel, who’s recent seminal bench trial conviction for violating the State of Minnesota’s assisted suicide law promises to set an important case precedence relative to a variety of issues including the application of physical laws in the virtual world, the right to die and even to a lesser degree the right to free speech.

Consisting of more than 25 posts to the PI Window on Business Blog between August 21st, 2010 and March 17th, 2011, this series of articles features exclusive interviews with key insiders into the case including the mother of 18 year old Canadian Nadia Kajouji.

Through this series of articles, we will provide you with both a logical and sequential timeline as to how the case progressed from the levelling of initial charges, to an examination of the defense’s pre-trial motions and the subsequent decision to pursue a bench versus jury trial including the analysis of the actual verdict.

Even though we of course have our respective opinions as to the core elements of this case, including the veracity of the outcome, we will ultimately leave it to you the reader who after all best represents the societal sensibilities to which we had referred earlier, to reach your own conclusions.

Regardless of your position, the Melchert-Dinkel case is likely the first and most significant step towards reconciling what has to this point been viewed as the separate realms of the physical and virtual worlds.

The Serial Suicide Killer (A Case Diary)

August 21st, 2010 – Are First Amendment Rights Becoming The Ultimate Excuse For Bad Behavior?

From Dr. Laura Schlessinger’s capricious on-air use of the “N” word, to the accused suicide serial killer William Melchert-Dinkel, who by his own admission has insidiously encouraged at least two people over the Internet to take their lives, their claims that their First Amendment Rights have somehow been violated seems like a pathetic attempt to draw the attention away from the bad behavior that got them in hot water in the first place.

Let’s think about this for a moment, because I am still having a good deal of difficulty in getting my head around what amounts to an indignant and even shameful cry of foul by two individuals who were and are clearly in the wrong.

To start, I doubt that this malleability of application being sought to justify Schlessinger’s words and Melchert-Dinkel’s actions were the freedoms that had been contemplated when the First Amendment was adopted on December 15, 1791.

In fact it would probably be a safe bet that whether you were an Alexander Hamilton-type Federalist or a Thomas Jefferson Anti-Federalist supporter, the one thing upon which there would be no disagreement is that the perversion of the spirit of Freedom of Speech proffered by these individuals would be met and dismissed with equal contempt.

Perhaps it is the spirit of the First Amendment that has been lost, and with it the realization and acknowledgment that being born in a country whose values still hold dear the concept of true freedom is also a privilege.  A hard earned right born of both courage and sacrifice by those that came before us.

In this regard, I cannot help but feel that we have taken this right of freedom for granted, and in doing so have somehow taken license to twist it to meet our own selfish ends and personal agendas.

This is of course the greater sadness that transcends to a certain extent the actions of these two individuals, who while vastly different in their infractions are forever connected through their misuse of the very principles and ideals that make America great.

Today is the 70th Anniversary of The Battle of Britain, when Winston Churchill delivered his historic “finest hour” speech to the House of Commons, in which he said of the air crews “never in the field of human conflict was so much owed by so many to so few.”

Of the reported 2,900 British and Allied airmen who took part in the Battle of Britain, more than 500 were killed.

Of course, so many more men and women perished in the wars that were fought on the principle of defending personal freedom.  I wonder how they would feel if they knew that their paying the ultimate price would today be used by a radio personality and serial killer as a shield to protect them from the consequences of their actions.

Maybe a moment of silent reflection should not be limited to Memorial Day.

 

August 24th, 2010 – How Many More Nadia’s: The Serial Suicide Killer Finds A Loop Hole

“Bill M-388, tabled in the House of Commons on May 26th by Albrecht, proposes that the government should ensure that counselling, aiding or abetting a person to commit suicide is a Criminal Code offence “regardless of the means used to counsel or aid or abet including via telecommunications, the Internet or a computer system.”

“While the Internet is deemed as a haven for free speech, it is important to protect individuals like Nadia from committing suicide at the encouragement of a predator,” said Albrecht, Member of Parliament for Kitchener-Conestoga.”

(The above excerpts, which are from a June 16th, 2009 LifeSiteNews.com article by Thaddeus M. Baklinski, pertains to the case of William Melchert-Dinkel, who has admitted to US police that he coaxed at least five different people to commit suicide using the internet.)

Included amongst his victims was 18 year old Nadia Kajouji, a student at Carleton University in Ottawa who killed herself after being “encouraged” to do so in a series of internet chat room discussions with Melchert-Dinkel.

Alex Schadenberg, who is my guest today, is from the Euthanasia Prevention Coalition in London, Ontario and he believes that the RCMP should consider extraditing William Melchert-Dinkel, as it is a crime under Canadian law (Section 241) to Aid, Abet and Counsel suicide, whether suicide occurs or not.

“In this case Kajouji was counselled via the internet to commit suicide and there appears to be enough evidence to charge Melchert-Dinkel,” Schadenberg said.

Despite those sentiments, Melchert-Dinkel’s case is being tried in Rice County District Court in the State of Minnesota near his home town of Faribalt.  Even more disconcerting is the fact that his lawyer Terry Watkins said after the hearing he expects his client to be acquitted.   The reason amongst others . . . because it’s a violation of his client’s right to free speech.  According to a June 30th, 2010 article in the Faribalt Daily News by Shane Kitzman, Watkins also argues for a dismissal saying “the law is being used vaguely and that there’s lack of probable cause.”

Given the complexities of the laws involving Internet crime, especially spanning numerous international jurisdictions, there is a very real possibility that Melchert-Dinkel may indeed walk.

August 25th, 2010 – Is The Internet A Safe Haven For Serial Killers?

“While the Internet is deemed as a haven for free speech, it is important to protect individuals like Nadia from committing suicide at the encouragement of a predator.”

(The above quote is from the opening paragraph for both my August 24th PI Window on Business blog post and August 25th radio segment titled “How Many More Nadia’s: The Serial Suicide Killer Finds A Loop Hole.”)

I was of course talking about The Serial Suicide Killer as I have called him, William Melchert-Dinkel, a 47 year old former nurse and father of two daughters who admits to coaxing five people to commit suicide including 18 year old Ottawa student Nadia Kajouji, and likely encouraging dozens more to follow suit.

What was his weapon of choice?  The Internet!

I went on to write that “Given the complexities of the laws involving Internet crime, especially spanning numerous international jurisdictions, there is a very real possibility that Melchert-Dinkel may indeed walk.”

Citing everything from a violation of his right to free speech and what his lawyer Terry Watkins refers to as the vague use of the law and that as a result there is a lack of probable cause, an acquittal despite the admission and corroborating evidence could happen.

This leads to a number of troubling yet interesting questions including whether or not Melchert-Dinkel is in fact a serial killer and, if the Internet is likely to become a predator’s haven from prosecution.

August 26th, 2010 – Cyber War and the Emergence of the Borderless Criminal: Why the Melchert-Dinkel Serial Killer Case Should Be a Slam Dunk . . . For the Prosecution

“The basis for the assimilation or perhaps reconciliation of virtual and physical realities in terms of law enforcement starts with the basic premise of criminal law, which as Susan Brenner who is the NCR Distinguished Professor of Law and Technology at the School of Law stated in a May 6th, 2009 article, is about “preventing the infliction of harm.”

Brenner went on to say that “we should not simply assume criminal conduct vectored through cyberspace represents an entirely new phenomenon, i.e. cybercrime,” as it may represent “nothing more than the perpetrators’ using cyberspace to engage in conduct that has long been outlawed.”

The long and the short of the William Melchert-Dinkel case, is that by his own admission he misrepresented himself to vulnerable and emotionally ill people over the Internet as a young, female nurse, coaxing them to commit suicide and requesting that they allow him to watch them take their own lives via webcam.

Having confessed to encouraging dozens of people to commit suicide over the Internet, he is now facing trial in Rice County, Minnesota for two deaths in which he played an integral part.  One is the suicide of Nadia Kajouji, an 18 year old university student from Ottawa, Canada and the other a 32 year old man (Mark Drybrough) from Coventry in the UK.

While we will be delving into the question of whether or not Melchert-Dinkel is a new breed of serial killer – after all he provided Drybrough with detailed instructions on how to hang himself, right down to the placement of the knot on the noose so as to leave a distinguishable impression behind his left ear (a signature of a serial killer as far as I am concerned), when I interview renown criminal profiler Pat Brown on September 1st at 10:00 PM EST, laws of the physical world have indeed been broken.

With regard to Nadia Kajouji, Section 241(b) of the Canadian Criminal Code, which prohibits the giving of assistance to commit suicide, as stood up to what can be referred to as legitimate challenges such as the landmark 1993 Canadian Supreme Court decision in the case between Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519.

In the 1993 case, 42 year old Sue Rodriguez, who had been diagnosed in 1992 with amyotrophic lateral sclerosis (otherwise known as ALS or “Lou Gehrig’s disease”), sought to have the law overturned based on the argument that it was contrary to the Canadian Charter of Rights and Freedoms.  In a 5 to 4 decision, the court upheld the provision in the Canadian Criminal Code.

Even in Minnesota, the jurisdiction where Melchert-Dinkel is facing trial for the Kajouji and Drybrough deaths, an August 24th, 2010 article in the stpeterherald.com website by Derek Wehrwein, reported that what is “at issue is a Minnesota law that makes illegal intentionally advising, encouraging or assisting another in taking the other’s own life.”

However and here is where there is considerable gray area, the law according to Wehrwein “doesn’t specifically address situations involving communication via the Internet.”  This as it turns out is the basis upon which some legal experts (including Melchert-Dinkel’s lawyer Terry Watkins) have suggested that freedom of speech issues could play a role in the case.

The issue of free speech notwithstanding, we are now brought back full circle to Susan Brenner’s May 6th, 2009 article that happens to share the same views associated with the introduction of Bill M-388 in late 2009 by Canadian Member of Parliament Harold Albrecht.  Bill M-388 “urges action against those who counsel or assist in suicides, specifically targeting those suicides that are promoted through the internet.”

Albrecht’s motion which it should be noted was passed, and came about as a result of the death of Canadian citizen Nadia Kajouji reads, “That, in the opinion of the House, for greater certainty, the government should take steps to ensure that counselling a person to commit suicide or aiding or abetting a person to commit suicide is an offence under section 241 of the Criminal Code, regardless of the means used to counsel or aid or abet including via telecommunications, the Internet or a computer system.”

This leads to an even bigger question with considerably broader consequences . . . if it is considered to be a crime in the physical world, why would it also not be considered a crime in the virtual world?

In the Brenner article, she argued that “even though cybercrime—like witchcraft—departs from the traditional model of crime insofar as it involves the use of “otherworldly” forces, this, alone, does not justify creating specific cybercrime offenses.”

Brenner then went on to argue “that even though it involves conduct vectored though a non-corporeal reality, cybercrime is merely a method crime, i.e., crime the commission of which is distinct due to the tool the perpetrator uses,” and therefore “we do not need a “law of cybercrimes;” we can address cybercrime by using traditional offenses that are revised, as necessary, to encompass the digital versions of these crimes.”

I must admit that Brenner’s approach does seem to be quite logical and even reasonable.  Certainly, and following Brenner’s train of thought, the amendment of an existing law versus the creation of a new “cyber” law would represent a less onerous process and, serve as merely an extension of the principles behind a current law.

Perhaps at the risk of presenting an overly simplistic analogy, if before the invention of guns I intentionally kill someone with a knife during the commission of a robbery, am I not guilty of murder?  The introduction of a gun or a laser beam as my weapon therefore should not change the basic premise that by my hand another person would be dead.

August 28th, 2010 – In A Mother’s Words: Nadia Kajouji’s Mother to Talk About Her Daughter and the Serial Killer Responsible For Her Death

One of William Melchert-Dinkel’s victims was 18 year old Nadia Kajouji whose body washed up near the edge of the Rideau River behind St. Paul’s University more than 40 days after she was reported missing.

While the legal system debates the merits of bringing Melchert-Dinkel (to whom I have referred to as the Serial Suicide Killer in previous posts) to trial, based on his defense that his right to free speech has somehow been violated, I am inclined to share a similar sentiment to that of criminal profiler Pat Brown.

Specifically, as Pat – who is my guest this upcoming Wednesday evening at 10:00 PM EST would say, sometimes we pay far too much attention to these cowards who perpetrate such horrible crimes, and in the process overlook quite unintentionally the victims and their families.

In an effort to give a voice to Nadia and those who loved her dearly, we will be joined by her mother Deborah Chevalier during the first segment of our September 1st broadcast.

Deborah will share with us the story of her daughter and, her personal thoughts on Melchert-Dinkel and his upcoming trial in Minnesota.

While you can access our past coverage through the links below, for those who may be “tuning in” for the first time, Melchert-Dinkel has been charged in the deaths of both Nadia Kajouji (a Canadian citizen),  and 32 year old Mark Drybrough (a UK citizen) under a Minnesota law that makes illegal intentionally advising, encouraging or assisting another in taking the other’s own life.”

By his own admission, Melchert-Dinkel encouraged probably dozens of persons to commit suicide and characterized it as “the thrill of the chase.”

Portraying himself to vulnerable and emotionally ill people over the Internet as a young, female nurse, coaxing them to commit suicide and requesting that they allow him to watch them take their own lives via webcam, Melchert-Dinkel even convinced Drybrough to place the noose’s knot in a particular way so as to leave a distinguishing signature mark behind his left ear.

September 5th, 2010 – The Constitution is not a Suicide Pact: The questions and perhaps answers regarding The Serial Suicide Killer’s First Amendment Rights can be found in a statement by Abraham Lincoln

Life is often times filled with many ironies accentuated by the intersecting of seemingly unrelated events and elements that transcends both time and perhaps – at least on the surface, logic.

Let’s consider the case of William Melchert-Dinkel, who faces trial for coaxing two individuals over the Internet to commit suicide and, by his own admission, encouraging dozens of others to follow suit while having the audacity to suggest that they take their lives in front of their web cam for his viewing pleasure.

Taking into account the fact that Melchert-Dinkel violated Minnesota’s assisted suicide law, as well as the laws of the countries of which the two victims were citizens (Canada and the UK), one would not unreasonably believe that this is a fairly straight forward case.

Especially when even those organizations that advocate a person’s right to die and support assisted suicide such as Compassion and Choices (formerly the Hemlock Society), have distanced themselves from him as well as his actions.

However, and as those experienced in the law will tell you, rarely if ever is the route from trial to justice a straight one.  A point I had emphasized in my August 25th post “Is The Internet A Safe Haven For Serial Killers,” when I wrote the following:

“Given the complexities of the laws involving Internet crime, especially spanning numerous international jurisdictions, there is a very real possibility that Melchert-Dinkel may indeed walk.”

Citing everything from a violation of his right to free speech and what his lawyer Terry Watkins refers to as the vague use of the law and that as a result there is a lack of probable cause, an acquittal despite the admission and corroborating evidence could happen.”

It would appear that there are legal experts who would support Watkins in his position, as well as even those in the media such as Mike Masnick.

Masnick, is the founder and CEO of the weblog Techdirt, which focuses on the news and issues associated with the high tech world.  He is also known for coining the phrase “The Streisand Effect,” which is a theory that is based on the belief that any “attempt to censor or remove a piece of information has the unintended consequences of causing the information to be publicized widely and to a greater extent than would have occurred if no censorship had been attempted.”  Sounds like a great story for another day.

With regard to the Melchert-Dinkel story, and in particular the vagueness of the Minnesota law, Masnick wrote in his May 14th, 2010 post Is It Illegal To Tell People How To Commit Suicide Online?;

“That “advises” part seems especially broad. Again, this is a tricky situation no matter what. It’s certainly difficult to defend this guy and his actions. But, there are larger issues here, concerning freedom of expression and a potentially overly broad law.”

Masnick’s statement immediately turned my attention to what I can only refer to as one of those intersecting ironies, in which a rhetorical phrase attributed to Abraham Lincoln appears to be both timely and applicable.  I am of course talking about the phrase “The Constitution is not a suicide pact.”

Given Melchert-Dinkel’s propensity for entering into “suicide pacts” with his emotionally vulnerable victims, while posing as a young female nurse, the Lincoln statement is eerily powerful.

The sentiments behind the term are based on the premise that constitutional restrictions on governmental power must give way to urgent practical needs.

For example, Lincoln used this statement in response to criticism that his suspension of habeas corpus during the Civil War violated the U.S. Constitution.

Throughout history, such collisions between individual rights and freedoms and protecting the greater good of societal interests are nothing new.

North of the 49th parallel for example, many older Canadians will readily recall the time that then Prime Minister Pierre Elliot Trudeau invoked Canada’s War Measures Act following the FLQ abductions of James Cross and Pierre Laporte, and the subsequent death of Laporte at the hands of his kidnappers in 1970.

Trudeau, who had long been a strong advocate of civil liberties, made the iconic statement that still echoes throughout the halls of Canadian politics “Just watch me” when asked by a reporter how far he would go “in the suspension of civil liberties to maintain order.”

Perhaps it is within the context of the willingness on the part of one of our civil rights champions to quickly impose Martial Law to serve the greater good of the nation that makes the strongest argument for those who sought Melchert-Dinkel’s extradition to Canada to face trial.

While there are rumblings that such an effort is currently underway, as it stands today The Serial Suicide Killer is going to stand trial in the United States.

In light of this present reality, U.S. history does give us possible insight into how the question of Melchert- Dinkel’s free speech may be viewed by a U.S. Jury.  Although, we should expand this contemplation of response to include the possibility of a Judge rendering a verdict as Nadia Kajouji’s mother, Deborah Chevalier expressed the belief that her daughter’s killer would likely opt for a hearing of his case before a judge only, versus a jury of his peers.

A good starting point as to what jury and or judge may consider is the Louisiana Purchase in 1803.

Even though Thomas Jefferson did not personally believe that the Constitution bestowed upon the government the “right to acquire or possess foreign territory,” he nonetheless signed the treaty.

His reasons, as he would later write, were based on the following;

“a strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

Using Jefferson as a point of reference, where is the greater danger to society in the case of Melchert-Dinkel?

In more recent times, Terminiello v. Chicago 337 U.S. 1 (1949) presents another compelling point of reference.

A Catholic priest under suspension, Arthur Terminiello criticized various racial groups and made a number of inflammatory comments during a speech to the Christian Veterans of America group.

During Terminiello’s oratory approximately 1,000 people had gathered in protest outside of the hall, and the resulting inability of the Chicago Police Department to maintain order led to his being fined $100 for violation of the City’s Breach of peace ordinance.

Even though the Illinois Appellate Court and the Illinois Supreme Court affirmed the conviction, Terminiello appealed all the way to the U.S. Supreme Court where Justice William O. Douglas ruled in favor of the priest whose anti-Semitic and pro-Nazi ranting’s had incited the riot in the first place.

In explaining his decision, Justice Douglas expressed the opinion that Chicago’s Breach of Peace ordinance had violated Terminiello’s First Amendment Rights.

Although Justice Douglas “acknowledged that freedom of speech was not limitless” referencing in particular the “fighting words doctrine” associated with Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), it did not in his opinion apply to the Terminiello case.  Not everyone agreed with Douglas’ decision.

One such dissenting voice was that of Associate Justice Robert Jackson, who in a 24 page response wrote;

“The choice is not between order and liberty.  It is between liberty with order and anarchy without either.  There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

This again raises the question with regard to the Melchert-Dinkel case . . . is a “doctrinaire logic” pertaining to the right of free speech overshadowing the practical wisdom to which Jackson was referring?

There is of course no shortage of case references regarding the rights of the individual versus the interests of society as a whole including Kennedy v. Mendoza-Martinez, in which Justice Arthur Goldberg wrote the court’s opinion that “laws permitting stripping draft evaders of their citizenship,” was “unconstitutional.”

I can even think of the 2006 book by Richard Posner titled “Not a Suicide Pact: The Constitution in a Time of National Emergency,” in which the Judge of the United States Court of Appeals for the Seventh Circuit and professor at the University of Chicago Law School wrote “the scope of constitutional rights must be adjusted in a pragmatic but rational manner.”

What the above examples tell me is that even though there is no doubt that individual freedoms are the linchpin of this great nation, the laws of self-preservation and of saving our country when in danger, balanced by practical wisdom in a pragmatic and rational manner would reasonably indicate that we possess another important freedom.  The freedom of choice!  A freedom which includes the ability to thoughtfully and intelligently apply the very laws that is there to protect us from harm.

In short, people make laws.  And through free will and good conscience, the laws exist to serve the people versus the people serving the law.

The only question that remains is not one of lofty legal debate but more specifically, what in both our individual and collective good conscience is a fair outcome for William Melchert-Dinkel and his victims Nadia Kajouji and Mark Drybrough?

September 5th, 2010 – Melchert-Dinkel’s Reference to “Legal Murder” Hints at the Existence of a Predator Network

In what I can only describe as an ominously foreboding awakening of dread, I received the following excerpt from a November 2006 William Melchert-Dinkel e-mail detailing his specific reference to what he termed as “legal murder.”

In referencing “people” who encourage depressed individuals to commit suicide, the Serial Suicide Killer wrote that “it is their ‘victory, in other words….legal murder.”

The fact that Melchert-Dinkel, who we know at the time was himself engaging in the very activity of the people to which he had referenced in his e-mail, would intimate that there are others out there like him should indeed send a collective shiver throughout society as a whole.

And as Judge Richard Posner argued in his book “Not a Suicide Pact: The Constitution in a Time of National Emergency,” that in facing terrorism and the threat of WMDs, the scope of constitutional rights must be “adjusted in a pragmatic but rational manner,” similar consideration needs to be given to the Melchert-Dinkel’s and those that comprise his terrorist cell.

While some may consider the reference to these predators as being a terrorist cell overly dramatic bordering perhaps on the extreme, when you consider the insidious manner in which a Melchert-Dinkel seeps into the supposed safety of the homes and lives of by his own admission dozens of people, usually when they are at their most vulnerable, the threat is no less real and widespread.

Through this lens, even if you were to discount the terrorist cell comparison, lawmakers would be ill-advised to simply view this as an isolated incident in which a single individual’s rights are purportedly at stake.

In this regard, decisions such as the one made by Craigslist this weekend to “surrender” its legal fight over erotic ads posted on its website by “shutting down its adult services section Saturday and replacing it with a black bar that simply says censored,” is worth noting.

In his prosecution of Melchert-Dinkel, perhaps Rice County Attorney G. Paul Beaumaster should follow the same aggressive lead of the Attorney Generals involved with the Craigslist investigation, whose position that “there weren’t enough protections against blocking potentially illegal ads promoting prostitution” was likely the main reason the online classified community made the decision to pull the plug on its adult services?

One thing is for certain, if there are indeed other William Melchert-Dinkels out there, this is likely just the tip of the proverbial iceberg of what will ultimately be exposed as a social network of predators and serial killers who are adept at leveraging the latest and greatest technology to destroy lives.

In this regard, the State of Minnesota v. William Francis Melchert-Dinkel, Prosecutor File No. A-10-0136 filed on April 23rd, 2010 will either stem the tide of murder by suicide or open the flood gates to a Pandora’s Box that will not be easy to close down the road.

If the world isn’t watching, it should be!

October 29th, 2010 – Trial of the Serial Suicide Killer not a question of freedom of speech or a person’s right to die, it is a question of intent!

As I was pondering the pending trial of Serial Suicide Killer William Melchert-Dinkel, I could not help but wonder what my opening remarks would be if I was the prosecuting attorney.

While the issue of the First Amendment relating to freedom of speech and a person’s inalienable right to die that is being presented as a viable defense for Melchert-Dinkel has credence in some legal circles, the real question that needs to be considered is one of intent.

Within this context, I would likely say to the jury:

Ladies and gentlemen of the jury . . .

If William Melchert-Dinkel had truly been exercising his right to free speech or championing a person’s right to take their own life, then why pose as a young female nurse and obfuscate his true identity?

If his intentions were in fact to help people in reaching a difficult decision at the crossroads of their life, then words such as “the thrill of the chase” and indirect references to finding a way to “commit legal murder” would never have been spoken or written.  Nor would he have attempted to talk these people into taking their lives in front of their Internet camera thereby enabling him in a perverse form of sadistic voyeurism to watch.

If Melchert-Dinkel’s intentions were truly a matter of free speech related to an individual’s right of self-determination, there would not have been the need to lie to his victims by knowingly entering into what was in reality a one-sided suicide pact.  It would also be unlikely that he would take the time to meticulously instruct victim Mark Drybrough as to how to place the nooses knot that he used to hang himself so as to leave a distinguishable mark just under his left ear.

No ladies and gentlemen of the jury, the real question . . . the only question is one of intent!

Did William Melchert-Dinkel intend to do harm?  Did he seek to gain perverted pleasure from his ability to coerce people who, at the lowest point in their lives, were vulnerable to his malicious subterfuge?

In weighing the evidence you will hear over the course of this trial ladies and gentlemen of the jury, ask yourself this one question . . . if you had a loved one – a daughter, a brother or mother – going through a difficult time, would you entrust their well-being to William Melchert-Dinkel?

The verdict . . . your verdict, is found in the answer to that question.

Thank you.

In the first of what will be a series of posts, I will talk about a discussion I had with victim Nadia Kajouji’s mother Deborah Chevalier, who shared with me an overview of an e-mail she received from Ottawa police investigators as to why the Crown Attorney did not want to pursue the case here in Canada.

Even though I am not a lawyer, I believe that my opening remarks to my imaginary jury is nonetheless both compelling and damning in terms of Melchert-Dinkel’s actions and ultimate guilt.  In the next post I will provide the legal basis for this view and why, the Crown Attorney in Canada should have sought to extradite the Serial Suicide Killer and try him in this country before purported issues of double jeopardy came into play.

November 1st, 2010 – Canadian Crown Attorney Should Have Eaten His or Her Wheaties RE Serial Suicide Killer Prosecution

I remember last year doing research on the theory of parental alienation and the role it plays in custody hearings, and thinking how wonderfully complex from an interpretive standpoint the law by which such trials are adjudicated can be.

Specifically, the fact that rather than being static, laws much like an elastic band are actually meant to be challenged or stretched as a means of maintaining their veracity in terms of reflecting our collective social mores.

However, and like the proverbial Rubik’s Cube, for many this very elasticity of subjective interpretation can be frustrating in and of itself.  The frustration level can of course increase based on the absence of connecting logic to support a particular decision.

A perfect example of this very observation came up in my most recent discussion with Nadia Kajouji’s mother Deborah Chevalier.

As you already know based on this blog’s extensive coverage, Nadia Kajouji of Ottawa and Mark Drybrough from Coventry in the UK both committed suicide at the encouragement of Internet predator William Melchert-Dinkel, whom I have called the Serial Suicide Killer.

Melchert-Dinkel, a resident of Faribault, Minnesota has been charged with two counts of violating that State’s Suicide Aiding law 609.215 subd. 1, for which the penalty is “imprisonment for not more than 15 years or a fine of not more than $30,000 or both.”  He is currently facing trial in Rice County, Minnesota.  The trial has yet to start, which is an important point that I will come back to again shortly.

Reading through the actual complaint, Melchert-Dinkel not only admits to playing a role in the deaths for which he has been charged, as well as potentially three others – bringing the total to five possible victims, he also stated that he recognized the questionable “moral” and “ethical” implications of his actions as a suicide advocate and, that he “thought assisting suicide was illegal, and that it was illegal in Minnesota.”   (Note: in an upcoming post I will present the highlights from the actual complaint and what they mean from the standpoint of the prosecution.)

Suffice to say, there is little question as to Melchert-Dinkel’s “role” in the deaths of both Nadia and Drybrough.

The question that does remain is simply this, why isn’t Melchert-Dinkel facing trial in Canada, which is where his nearest victim (at least by what we know at this point in time) lived?  You would think that given the fact that 18 year old Nadia is from Ottawa, the Crown Attorney here would have been chomping at the bit to extradite The Serial Suicide Killer and bring him to justice in this country.  Especially taking into account the opinions expressed by MP Harold Albrecht during my August 31st interview with the Deputy Government Whip (PI News Flash: Cyberwar and the Emergence of the Borderless Predator).

Mr. Albrecht, whose unyielding determination and commitment led to the passing of Motion 388 which “urges action against those who counsel or assist in suicides, specifically targeting those suicides that are promoted through the internet,” while admitting that he wasn’t a lawyer indicated that he was “fairly confident that had this occurred in Canada that we would not have waited this long” to lay charges.  In short, Canada would have moved much faster relative to laying charges against Melchert-Dinkel.

This of course is where the Rubik’s Cube conundrum comes into play.

As it turns out, and referring to an e-mail she recently received from Ottawa Police, rather than moving faster, the Crown Attorney in Ottawa informed Deborah that they had decided not to pursue the case citing amongst other things double jeopardy, resulting in an inability to prosecute Melchert-Dinkel because he is facing trial in the US.

There was also references made to the US – Canada extradition treaty, which purportedly prevents Melchert-Dinkel from being tried here in Canada for the same offenses he is facing in the US courts.  Interesting, but is it really an accurate reflection of the facts or, is it subject to the elasticity of interpretation where the will to try a case (or lack thereof) is the determining factor.

Well, let’s look at the double jeopardy angle being presented as a reason for not extraditing Melchert-Dinkel to face trial in the country of one of his victims.

According to one legal opinion dated May 14th, 2009, there is no “double jeopardy prohibition if a case is still pending trial.”  In this specific example (Extradition of Ye Gon— F.Supp.2d —-, 2009 WL 1311495D.D.C.,2009) a federal magistrate had certified Mr. Ye Gon for extradition to Mexico, while his criminal case was still pending in the United States.

Again, and I want to remind you that I am not a lawyer but, according to Non Bis In Idem or “Not twice for the same thing.”  in Black’s Law Dictionary 1051 (6th ed.1991), Article 6 of the extradition Treaty in question provides: “Extradition shall not be granted when the person sought has been prosecuted or has been tried and convicted or acquitted by the requested Party for the offense for which extradition is requested.”

Of particular interest in this specific case is the past tense reference relating to the “has been prosecuted” or “has been tried and convicted or acquitted” that was ultimately the deciding factor.  “Phrased as it is in the past tense,” contends the article’s author the words “has been prosecuted” should not be interpreted to “encompass the yet-to-be completed criminal case in the United States.”

As far as I know the Melchert-Dinkel trial as yet to be tried.  Even if it were tried and a verdict delivered, that wonderful elasticity of the law means that not even the above interpretation is bullet proof as demonstrated by Canada v. Schmidt, [1987] 1 S.C.R. 500.

According to case records, the defendant in the case, Helen Susan Schmidt a Canadian citizen, was charged along with her son and his friend with kidnapping a young girl in Cleveland, Ohio in 1982 claiming that the child was her granddaughter.

As kidnapping in the United States is a Federal Offence, she was tried at the Federal level on this charge, while Ohio charged her with “child stealing” which is an offence in that state.

In 1982 she was acquitted of the kidnapping charge, but fled to Canada prior to the start of the state trial for child stealing.  Even though facing the child stealing charge was not considered to be double jeopardy after her acquittal on the kidnapping charge according to the Fifth Amendment to the United States Constitution, Schmidt fought the extradition as a violation of double jeopardy rights under section 11(h) of the Canadian Charter.”

Schmidt ultimately lost her case, and in citing his reasons Justice Gerard La Forrest wrote, “I do not think our constitutional standards can be imposed on other countries.” The majority found that the charge would be in accordance with “traditional procedures” in Ohio. Finally, it found that “It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behavior.”

What the above case references provide is an example of the subjective interpretations to which I had previously referred, which would tend to indicate a tentativeness on the part of the Crown Attorney more than an absolute legal imperative.

To start, why wasn’t the Crown more proactive in pursuing the extradition of Melchert-Dinkel for his admitted role in the death of a young Canadian woman and, in the process, provide her family with an opportunity to sit in on the trial and face the accused in their own country.  After all, the crime was committed against a Canadian, and violated our laws.  In this instance I point to MP Albrecht’s belief, which likely reflects the majority of Canadian sentiments, that with even a modicum of ambition the Melchert-Dinkel proceedings should have been much further along than they are at present.

As I had also indicated earlier, the trial has yet to actually start as it appears that we are still at the motion stage, which includes an August 10, 2010 Motion for Rule 20.02 Mental Examination submitted by Melchert-Dinkel’s attorney Terry A. Watkins.

Specifically, and pursuant to Rule 20.02, subd. 1, of the Minnesota Rules of Criminal Procedure, Watkins is seeking to “appoint a medical examiner and order that a medical examination be conducted on the Defendant, William Francis Melchert-Dinkel, to determine if, because of mental illness or deficiency, the Defendant at the time of the commission of the offense charged was laboring under such a defect of reason as not to know the nature of the act constituting the offense with which the Defendant is charged or that it was wrong.”  In short an insanity plea.

While I will review the insanity plea in the next post, at this point it is worth noting that Minnesota adheres to the M’Naghten Rule, which places the burden of proof directly on the defendant relative to mental incapacity.  This is not likely to fly for a number of reasons, but again I will cover this in greater detail next time.

As for the here and now, and citing the (Extradition of Ye Gon— F.Supp.2d —-, 2009 WL 1311495D.D.C.,2009.) and the reference to past tense, double jeopardy should not be a significant issue especially if Canada took a hard stand to bring to justice an accused predator and killer who harmed one of its own citizens.

While the Canada v. Schmidt, [1987] 1 S.C.R. 500 case is not as compelling as the double jeopardy provision for pursuing extradition, it nonetheless illustrates the subjective nature of the law, even within the international arena.  After all, Schmidt faced two different charges for what amounts to the same crime.  Perhaps the Crown might be inclined to investigate a charge of depraved indifference?

In short, if the Crown Attorney had demonstrated any gumption and pursued extradition right out of the gate, while maybe not a slam dunk, we would likely be following the trial here in Ottawa instead of placing our hope on a prosecutor in another country which is also home to the accused.

All this being said it is still not too late for the Crown to do the right thing.  Let’s just hope that they read this, eat their Wheaties tomorrow morning and take action.

November 5th, 2010 –  Melchert-Dinkel Insanity Plea Not Likely To Succeed (But Did He Counsel Children In Taking Their Own Lives?)

Defense counsel, Terry A. Watkins, moves this court, pursuant to Rule 20.02, subd. 1, of the Minnesota Rules of Criminal Procedure, to appoint a medical examiner and order that a medical examination be conducted on the Defendant, William Francis Melchert-Dinkel, to determine if, because of mental illness or deficiency, the Defendant at the time of the commission of the offense charged was laboring under such a defect as not to know the nature of the act constituting the offense with which the Defendant is charged or that it was wrong.

(Excerpt of Motion filed on behalf of William Melchert-Dinkel by attorney Terry A. Watkins relating to Rice County Court File No. 66-CR-10-1193)

Given the litany of motions filed by attorney Terry A. Watkins relating to the case that is presently before the courts in Rice County, Minnesota in which his client, the Serial Suicide Killer, faces two counts of violating 609.215 subd. 1, Suicide – Aiding in relation to the deaths of Canadian Nadia Kajouji and Mark Drybrough – formerly of Coventry in the UK, receiving zealous representation is certainly not an issue.

Watkins of course has thrown everything but the proverbial kitchen sink at the Minnesota courts by way of motions which include;

  •  Motion to Dismiss for Lack of Probable Cause
  •  Motion to Suppress Confessions, Admissions, or Statements in the Nature of Confessions Made by Defendant
  •  Motion to Suppress Evidence Discovered as a Result of Confessions, Admissions, or Statements in the Nature of Confessions Made by Defendant (you have to love the “fruit of the poisonous tree” concept)
  •  Demand for Hearing Pursuant to Rule 8.03 of the Minnesota Rules of Criminal Procedure
  •  Motion to Dismiss for Vagueness and Over breath of Minn. Stat. 609.215, as applied to Defendant’s conduct
  •  Motion to Dismiss for Violations of Free Speech Protections
  •  Affidavit of Service

At the end of the day, and despite all the posturing, it now appears that the case is going to come down to the following:

“Pursuant to Rule 9.02, subd. 1(3)(a), of Minnesota Rules of Criminal Procedure, Defendant hereby notifies prosecuting attorney of his intention to assert a defense of mental illness or mental deficiency his intention to additionally rely upon the defense of not guilty.”

Ahh, the cherry on top of a cake of misdirection and avoidance of personal responsibility for his actions leading to the deaths of two people, one a young 18 year old university student with her  whole life in front of her.  When in doubt, pull an old standby out of the legal defense hat . . . I was crazy and did not know what I was doing.

Am I the only one experiencing a deja vu moment relating to Flip Wilson’s Geraldine character proclaiming that “the devil made me do it!”

As it stands, the intrepid Mr. Watkins faces what appears to be two daunting challenges or obstacles in relation to a defense of mental defect.

Right out of the gate is the fact that the State of Minnesota adheres to the M’Naghten rule in determining a defendant’s sanity.

For those who may not be familiar with the M’Naghten rule, it clearly states that, “Every man is to be presumed to be sane, and . . . that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party ACCUSED was laboring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. “

In essence, the burden of proof relative to an insanity plea falls squarely on the shoulders of the defendant – in this case Melchert-Dinkel.

This leads directly into the second and likely most damning piece of evidence in terms of refuting a claim that Melchert-Dinkel “was laboring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong” as it relates to satisfying the terms of legal insanity under the M’Naghten rule.

Specifically, pages 3 and 4 of the Criminal Complaint filed by the State of Minnesota in which the following is stated:

“Mr. Melchert-Dinkel did state that he thought assisting suicide was illegal, and that it was illegal in Minnesota.  He agreed to allow officers to search his home and signed a waiver agreeing to the search of his computer.  He admitted to entering into 10 to 11 suicide pacts online with individuals all over the world.  He admitted he moved from advising suicides to encouraging suicide.  He stated age and circumstances would determine whether or not he discussed suicide methods or encouraged suicide.  He explained suicide pacts were made with those “most intense” on committing suicide.  He noted others on line would catch on to the suicide encouragement and would post warnings.  The warnings would be posted messages such as, Watch out, Li Dao is out to encourage people to die rather than help.”  He again estimated he most likely encouraged dozens of persons to commit suicide and characterized it as the thrill of the chase.  He could not be certain as to the numbers because the successful suicide was hard to verify and that there could be dozens, which he found to be a scary thought.  He stated he only encouraged suicide and never told anyone to do it, but told them it was up to them.  He admitted there have been cases where people he counselled to commit suicide have died and he encouraged them by telling them it was ok to let go, that they would be better in heaven, and that his caring nature went too far.”

No wonder his attorney Watkins has filed motions “to Suppress Confessions, Admissions, or Statements in the Nature of Confessions Made by Defendant” and “to Suppress Evidence Discovered as a Result of Confessions, Admissions, or Statements in the Nature of Confessions Made by Defendant (the “fruit of the poisonous tree” concept).”

Based on his own statements, it certainly seems to me that Melchert-Dinkel not only possessed the mental capacity to understand that his actions were illegal but, that he also understood the moral implications associated with his role in the “thrill of the chase” encouragement that he provided to his victims.  This awakening was demonstrated by an earlier statement he gave to police that is referenced in the complaint in which he indicates that “he stopped the contacts and discussions after the holidays (referring to Christmas of 2008) due to moral, ethical and legal reasons.”

By the way, did you pick-up on his comment that “age and circumstances would determine whether or not he discussed suicide methods or encouraged suicide?”  I have to admit that a chill ran up the back of my neck because who’s to say that he did not come into contact with teenagers (children) who were under the age of majority.  After all, didn’t he lie about his identity – which provides further proof that he clearly knew what he was doing was wrong.

The possibility alone that he engaged children on-line should at minimum spark debate as to whether or not Melchert-Dinkel is also a child predator, and thus should fall under the jurisdiction of the all-encompassing laws which exist to protect children.   The fact that in the State’s complaint he admitted that “his (teenage) daughters had seen his discussions on the Internet and he had told them that his discussions were not right,” would seem to provide indisputable proof that he was interacting in some way either directly or indirectly with children.

What if one of the uncertain numbers to which he referred who may have committed suicide at his prompting, was a child of 15 or 16?  Doesn’t this change the case considerably?  Maybe the prosecution should investigate this possibility more closely?  Maybe Melchert-Dinkel should save the State and the people, including the families of his victims the pain of a trial and plea bargain?  It might make a good deal of sense from the defense standpoint because if it can be proven that he directly engaged with children over the Internet and, in a worse-case scenario one of these children committed suicide, then he would likely be facing a far stiffer penalty.

Just as a side note, I have always believed that one should give serious pause when an answer to a question that wasn’t specifically asked is offered.  The police as far as I know did not ask Melchert-Dinkel about the ages of the people with whom he was engaged over the Internet, yet he chose to freely offer that “age and circumstances” were a factor in his actions?

All this being said, and focusing again of the submission of an insanity plea, I am of the same mind as criminal profiler Pat Brown who contends that “Serial killers premeditate their homicides and work to cover up their acts clearly showing an understanding that he knows his actions are illegal.”

Based on the evidence provided, William Melchert-Dinkel clearly knew what he was doing, enjoyed what he was doing re his “thrill of the chase” comment and, understood that it was wrong from both a legal and moral standpoint.

Case closed . . . maybe?  Next week I will review in detail the motions filed by the defense to suppress the Serial Suicide Killer’s confession and resulting evidence.  Is there in fact a legal loophole through which Melchert-Dinkel can escape justice and the consequences of his actions?

November 9th, 2010 – PI News Special: Melchert-Dinkel Counselled and then Watched via Webcam as 16 Year Old Girl Cut Herself

Why are you here? Are you listening?

Can you hear what I am saying?

I am not here, I’m not listening

I’m in my head and I’m spinning

Lyrics from the song Fallen by Jared Leto

The gravity of the actions of Serial Suicide Killer William Melchert-Dinkel took both a perverse and frightening turn as I was able to confirm that he did indeed engage with minors over the Internet, counselling them on how to take their own lives.

One of what is believed to potentially be many cases in which the Serial Suicide Killer stalked children to satiate his need for what he referred to as “the thrill of the chase,” involves a 16 year old girl from the Netherlands who used the screen name fallenfall in her exchanges with Melchert-Dinkel.

According to sources, Melchert-Dinkel spoke with the young girl about cutting herself, and then watched her do so via her web cam.  The girl thankfully survived the ordeal.

While I am following up on additional leads of other cases where the predator “knowingly” spoke with minors, one of the most difficult elements of this revelation is that the young victims who have survived are not willing to come forward and make their activities known to the authorities.

Conversely, those who didn’t survive their encounter with Melchert-Dinkel have, in the majority of instances, been classified by police as being a suicide with their case being closed without further investigation.

The tragedy here as one person told me is that it is so “sad that people are dying; our children are dying, and no one – not even the police, want to look at why.”  Lamenting the fact that for “every person who dies needlessly, there is a reason why,” it is clear that predators like Melchert-Dinkel will continue to operate freely within the relative safety of the virtual world, hunting those amongst us that are the most vulnerable . . . including our children.

Even though we may be inclined to place the burden for protecting the public from the destructive force of a faceless monster on the shoulders of the authorities, in reality parents and family members are the first and most important lines of defense.   While this will not necessarily eliminate the danger all together, it will make it more difficult for intruders to gain access to our children and possibly lead them down a tragic path of no return.

In this regard, and given the insidious manner through which killers can easily gain access to our homes by taking advantage of the fact that parents have been lulled into a false sense of security through the absence of a physical danger, means that we must all become more vigilant in terms of understanding and even moderating our children’s on-line activities.

In the meantime, law enforcement and legislators also need to do their part by viewing the problem of Internet predators through a new, expanded lens that is commensurate with the opinions expressed by NCR Distinguished Professor of Law and Technology, Susan Brenner.  According to Brenner, “we should not simply assume criminal conduct vectored through cyberspace represents an entirely new phenomenon, i.e. cybercrime,” as it may represent “nothing more than the perpetrators’ using cyberspace to engage in conduct that has long been outlawed.”

While some may argue that charging Melchert-Dinkel with a crime relative to counselling adults to commit suicide over the Internet is a possible violation of his right to free speech (and an adult’s right to die), the response to recent PI Window Survey’s and Polls clearly indicate that this same argument does not apply in those instances in which a child has received similar counsel from the Serial Suicide Killer.

In short, and according to the law, minors are not viewed has having the prerequisite understanding of the consequences of their actions and are considered to be more vulnerable than adults, thereby requiring greater protection.  Encouraging a girl to cut herself and then watching her do so via a webcam is repugnant beyond comprehension.  Doing nothing about it is inexcusable!

To borrow a Sean Connery line from the movie The Untouchables . . . “what are you prepared to do?”

November 10th, 2010 – PI Window Breaking News Exclusive: Nadia Kajouji’s Mother’s Reaction to Judge’s Order a Mix of Relief and Urgency

In a major set-back to the defense, several motions filed by attorney Terry Watkins on behalf of the Serial Suicide Killer William Melchert-Dinkel, including the controversial contention that the “Defendant’s conduct constituted speech protected by the United States and Minnesota’s constitution,” was denied by the courts.

In his November 8th order (a copy of which can be viewed through our SlideShare Viewer below), Judge Thomas M. Neuville denied defense attorney Terry A. Watkins’ motions to dismiss all charges against Melchert-Dinkel which claimed that:

  •  Minnesota Stat. 609.215, subd. 1, is unconstitutionally vague under the United States and Minnesota Constitutions,
  •  the Defendant’s conduct constituted speech protected by the United States and Minnesota Constitutions,
  •  Count 1 of the charge in relation to the death of Mark Drybrough due to lack of probable cause,
  •  Count 2 of the charge in relation to the death of Nadia Kajouji due to lack of probable cause.

A 5th motion filed by Watkins requesting that Melchert-Dinkel’s statements to the police during a January 7th, 2009 interview at the Defendant’s home in Faribault, Minnesota, and the evidence obtained as a result of said statements be suppressed, was withdrawn and therefore granted by Judge Neuville in his order.

A hearing has been scheduled for November 19th, 2010 at which time the court will accept Melchert-Dinkel’s waiver to suppress his statements to police, as well as receive the Defendant’s plea regarding the charges that were originally filed earlier this year on April 23rd.

While I will provide a more detailed breakdown of Judge Neuville’s order in my regular Friday post, in explaining his decision to deny the defense’s motion regarding free speech, several cases were cited in the order including references to State v. Williams, 759 N.W.2d 438,443 (Minn. 2009) in which the State meets the burden that in aiding and abetting another person to commit suicide, the accused is liable if said speech “encouraged the principal to take a course of action which he might not otherwise have taken.”  This includes a “defendant who takes no steps to thwart its completion” re State v. Russell, 503 N.W.2d 110, 114 (Minn.1993).

Basically, Judge Neuville found that “the encouragement of a principal to take a course of action he might not otherwise have taken can be accomplished through speech.”  This is an important decision in that speech is the primary “weapon” within the virtual realms of the Internet.

In recognizing speech as a tangible element in the violation of Minnesota’s assisted suicide statute, Judge Neuville did not accept the defense’s contention that given the similarities between Minnesota’s and California’s anti-suicide statutes, and the latter’s specific reference to the necessary presence of physical elements associated with aiding and abetting a principal in taking his or her own life  through “furnishing the means for bringing about death – the gun, the knife, the poison, or providing the water” provided for in Ryan N., 92 Cal. App. 4th 1359, 1374 (Cal. 1st Dist. Div. 3 Ct. App. 2002), the Judge referenced Minnesota Statute 609.05 which states that “a person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit a crime.

Specifically, and in his ruling that the State met its burden re the question of Governance of Speech, “both the assisted suicide and aiding and abetting statutes require an element of intent that the respective suicide or crime takes place and an intentional act on behalf of the defendant in furtherance of that goal.”  The order went on to state that “if the intent elements are met, acts to encourage, aid, or assist in the suicide or crime can be accomplished through speech.”  In short the pen, or in this case virtual words, is indeed mightier than the sword.

In a PI Window breaking news exclusive, Deborah Chevalier who is the mother of Melchert-Dinkel victim Nadia Kajouji, had this to say about the decision in Minnesota:

“Although I’ve not yet had much of a chance to formulate my thoughts regarding today’s ruling, mostly I’d have to say that I feel relieved.”

Ms. Chevalier then stated that “now finally we can move forward again, get his plea, and go to trial.  I’m looking forward to a conviction.  It’s difficult that things move so slowly; even more difficult when they seem to be stalled.”

Taking a broader view of the proceedings south of the border, Ms. Chevalier then added, “this is a precedent that desperately needs to be set,” and that “this is not merely seeking justice for William Melchert-Dinkel’s victims.”

According to Ms. Chevalier, a conviction “will also send a message to other Internet predators and others who would use free speech as an excuse to bully and prey upon others.”  It is her hope that “right now we are laying the groundwork that will enable us to prevent future tragedies,” and that if we succeed “perhaps police will be less hesitant to investigate and lay charges.”

While the motion for a mental evaluation of Meclhert-Dinkel pursuant to Rule 20.02  discussed in my November 5th post “Melchert-Dinkel Insanity Plea Not Likely To Succeed (But Did He Counsel Children In Taking Their Own Lives?)” was granted (note: the evaluation report is now in the hands of the concerned parties), meaning that the insanity plea is still on the table to be addressed by the courts, this latest decision by Judge Neuville removes what was at one point considered to be the major obstacle to conviction.

November 18th, 2010 – Is an insanity plea the only remaining option in Serial Suicide Killer’s efforts to avoid prison?

“However and here is where there is considerable gray area, the law according to Wehrwein “doesn’t specifically address situations involving communication via the Internet.”  This as it turns out is the basis upon which some legal experts (including Melchert-Dinkel’s lawyer Terry Watkins) have suggested that freedom of speech issues could play a role in the case.”

(Opening paragraph from August 26th, 2010 post “Cyber War and the Emergence of the Borderless Criminal: Why the Melchert-Dinkel Serial Killer Case Should Be a Slam Dunk . . . For the Prosecution“)

Despite the legal posturing in which everything from a violation of his First Amendment right regarding free speech, to the apparent vagueness of Minnesota’s assisted suicide law being thrown at the courts by William Merlchert-Dinkel’s attorney Terry A. Watkins, it has all boiled down to what is tantamount to the equivalent of a Hail Mary pass in football . . . an insanity plea.

As outlined in my November 5th post “Melchert-Dinkel Insanity Plea Not Likely To Succeed (But Did He Counsel Children In Taking Their Own Lives?),” there are numerous reasons why the insanity plea is unlikely to be successful.  And even though I can hear my grandmother’s admonishment that one should never count their chickens before they hatch, I wanted to examine the far-ranging consequences of a conviction including its impact in terms of establishing legal precedence within the virtual realms of the Internet and, the lingering effect it will likely have on the right to die and assisted suicide laws both domestically as well as globally.

As a result, the PI Window will be airing a 60 minute special on Wednesday, December 15th at 8:00 PM EST in which I will be joined by a guest panel that will include NCR Distinguished Professor of Law and Technology, Susan Brenner.

Brenner, whose insights on bridging the apparent gaps between crimes committed in both the physical and virtual worlds are well known, contends that “we should not simply assume criminal conduct vectored through cyberspace represents an entirely new phenomenon, i.e. cybercrime,” as it may represent “nothing more than the perpetrators’ using cyberspace to engage in conduct that has long been outlawed.”

Within the context of the above statement, during the segment we will peel back the layers of what are the seemingly contradictory elements of a complex case and assess the impact that a conviction (or acquittal) will have on our laws and personal rights and freedoms.

November 26th, 2010 –  A “Shattered Family” – Melchert-Dinkel’s Forgotten Victims?

Thank you for putting into words what I believe to be so true. He lives in the town I live in and it is a disgrace. My children went to school with his kids and they are paying for it. I hope the best for the kids. He needs to be in prison. He is a danger to society.

(Comment by Lisa (RE Nov. 9th post PI News Special: Melchert-Dinkel Counselled and then Watched via Webcam as 16 Year Old Girl Cut herself))

By all indications, both Mari and Molly Melchert-Dinkel appear to be typical teenagers growing up in small town U.S.A.

From being active in sports such as baseball and volleyball, making the local high school’s Grade 9 Honor Roll and sharing the normal angst-filled musings associated with the awkward years between childhood and adulthood on a favored social networking site, one would be hard pressed to distinguish William Melchert-Dinkel’s daughters from any other Faribault, Minnesota teenager.

Unfortunately, and in line with their mother Joyce Melchert-Dinkel’s tearful lament that upon being made aware of her husband’s actions “Our family was shattered that night,” the two young girls are existing in a world that is anything but normal.

While we cannot lose sight of the significant and lasting damage that Melchert-Dinkel’s quest to satiate his perverted obsession with death and suicide has inflicted on the families of Nadia Kajouji and Mark Drybrough, it is also important to recognize the fact that the consequences of his ruinous conduct were also reflected back on his own family, and in particular his daughters.

This was of course a sentiment expressed by Faribault resident Lisa Hullett in her comment regarding my November 9th post, and one that I am certain is shared by the majority of people who have been following this story.

Looking beyond the emotional impact, what can a child do under such unusual and trying circumstances?  Especially when given the natural inclination to look to a parent for comfort and reassurance, only to discover that the parent is actually the source of their pain and embarrassment.

In the March 30th, 2007 article “Son of a Serial Killer: Exclusive Interview with John Gore, Son of Convicted Murderer David Gore” the son of the former sheriff’s deputy in Indian River County, who was convicted for 6 murders (although authorities suspect that the number could be as high a 50), was asked “what kind of advice would you give to people or children who are going through what you have, who are dealing with either dads or moms who have committed these type of crimes, to help them get by?”

In a response that may be as much defiant posturing as it is a frank reflection of his true feelings, John Gore said that he “would tell them to listen to themselves, don’t listen to what others tell them. If someone is telling you to hate them; don’t, make your own judgment. Don’t just not hate them don’t hate anyone when someone tells you to, or because someone else wants you to. I think you have to do what you want to do in this situation. That’s what makes a person unique is being able to have that choice.”

Without a doubt all children as they enter their teen years seek to carve out their own unique place in the world that is separate from that of their parents’ world, while still reconciling themselves to the values of life they witnessed and were taught during their formative years.

In the case of John Gore, the fact that he was by his own words very young when his father’s crimes came to public light may to a certain degree have helped to shelter him, but living in a small town nonetheless presented numerous challenges.  “It was pretty hard everywhere I went when people found out my last name was Gore people knew exactly who I was and exactly what my family’s history was,” the younger Gore recounted to the interviewer.  “It basically continued on with me,” making reference to the fact that local police kept a close watch on both he and his brother’s movements as the town was “hell-bent that this would never happen again,” and that “they were willing to do almost anything to keep it from happening again.”

Even though the crimes committed by David Gore involved local victims, as opposed to the victims of Melchert-Dinkel who lived far way – in one case across the Atlantic, I would doubt that the trauma and subsequent scrutiny is any less invasive and hurtful.  Perhaps in some ways, it is even more challenging in that this case is playing itself out on a global stage for many reasons including the fact that the ultimate verdict will have far reaching consequences in how we view crimes committed over the Internet.

In some instances, such as in the case of the daughter of Keith Hunter Jesperson who is known as the infamous “Happy Face” serial killer, separation by becoming “something other than my father’s daughter” meant focusing on how she could make herself “a better person.”

As told in the Melissa G. Moore book “Shattered Silence: The Untold Story of a Serial Killer’s Daughter,” Jesperson’s 15 year-old daughter was “consumed with guilt and shame for his horrific actions,” and for years, would “have nightmares of him showing up at her door.”

A big reason for her ability to finally escape the shadow of such a notorious father is that she learned to move on by choosing instead to concentrate “on being a wife and mother.”   This meant that she had to stop “wasting precious energy thinking about my father” as she realized that she “had no control over what he did,” and “that there was nothing she could do to change it.”

Even though she dreads the day “when I have to tell my children about their grandfather,”  she is no longer haunted by her own past indicating that she has learned that we are not a product of our circumstances in life,  but are instead free to decide our own future.

Besides knowing that they are not alone in their experience, these are perhaps valuable lessons through which both Mari and Molly Melchert-Dinkel can find some degree of immediate peace and eventually longer term reconciliation with the unimaginable actions of a parent.

November 30th, 2010 – Is Suicide Really Painless on the Internet . . .

“But in the meantime I want to warn youngsters about the possible dangers these websites can pose.

“I would also like to warn parents to be actively on the alert for signs of their children being influenced by others on these sites.”

(Comments by Coroner Phillip Walters, from January 2008 Mail Online Story “Coroner launches probe into ‘internet suicide cult’ after SEVEN youngsters in one town hang themselves”)

While the legal system attempts to reconcile existing laws with criminal activity that is vectored through cyberspace, the pending trial of The Serial Suicide Killer William Melchert-Dinkel represents the first consolidation of awareness of a problem that has been brewing beneath the virtual surface for some time.

In fact, it would appear that the absence of physical interaction provided through suicide chat rooms and forums delivers for many the final push to do something that they would have unlikely been able to do outside of the isolation and anonymity of the Internet.

At least this would appear to be the case according to members of one suicide forum who say that “discussing their suicidal inclinations online is much easier than in real life.”

In the June 8th, 2003 (that’s right 2003) article “A Virtual Path To Suicide,” which talked about how 19 year old Suzy Gonzales took her life by drinking a cyanide cocktail, the young Florida State University student provided some insight into the manner in which these chat rooms are alluringly effective at muting the consequences of such a drastic course of action.

“When online, I am calm and collected,” Gonzales wrote 10 days before her death but,  “give me a couple of seconds of talking about (suicide) in person and it’s the same as with the suicide hotline.”  “I get shaky and start crying. And then I just feel silly — Basically, I just need a friend who will understand me.”

A friend and understanding is something we all need throughout our life, however a friend does not push you off the precipice of an irreversible decision with eternal consequences.

While Andrew Beals, the founder of the group that “counselled” Gonzales, expressed his continuing belief that suicide is a “valid way to end depression and terminal illness,” he also cautioned that online forums such as the one he started in 1990 “wasn’t intended to be a fly trap for the suicidal.”

In a kind of ironic twist Beals, who dropped out of his own group a couple of years later after finding new meaning in life when he “got a divorce, got happier and got a dog,” leads one to ask the question why weren’t Suzy Gonzales and more recently Mark Drybrough and Nadia Kajouji been afforded the same opportunity for an alternative path?

Like a mob cheering at a public hanging these chat rooms, which we discovered with Melchert-Dinkel, are nothing more than a means by which predators can satiate their desire for the thrill of the chase by pulling the emotional strings of those who are most vulnerable.

What is even more disconcerting as highlighted in the 2008 Mail Online story is that these forums can actually take on a “cult-like” appeal that “romanticizes” teenage death.

Nowhere was this alarm sounded louder than it was in the town of Bridgend, where it was reported that seven youngsters aged 17 to 27 had hung themselves in a one year period.  All had apparently belonged to the same Bebo and MySpace website – although no social network is immune – which led the town’s Coroner Phillip Walters to issue the ominous warning as he began his initial investigation into the deaths and the role that these Internet communities played in the spate of suicides.

In the end, the virtual realms of the Internet are disconcertingly invasive and powerfully influential in that they lack the physical attributes that can alert parents or family members and friends to the possibility that trouble is brewing on the near horizon.   For example, if someone begins to hang out with the wrong crowd, a parent can actually see this happening and have an opportunity to intervene.

However, within the obfuscated virtual reality of a teenager’s bedroom, where the openness of cyberspace belies the supposed safety that is one’s home, and where predators like Melkchert-Dinkel freely move about, the consequences of Internet-inspired suicide eventually and painfully collides with the real world.

December 30th, 2010 – Don’t Say A Word: By Their Silence Are Psychiatrists, Police and the Newspapers Responsible for Helping to Create the Suicide Chat Rooms Frequented by Predators like Melchert-Dinkel?

Psychiatrists, police and editors cite the contagion effect as the principal reason to not report suicides. The theory is that extensive coverage of one suicide triggers other suicides, spreading like a virus. After Goethe’s The Sorrows of Young Werther, a novel about a man who shoots himself over a doomed love affair, came out in 1774, there was a reported increase in young men shooting themselves. That’s why some people refer to the contagion, or copycat, effect as the Werther Effect.

(Opening paragraph from Suicide Notes by Liam Casey, Ryerson Review of Journalism December 22nd, 2010)

As both an author and a radio host I always try to give every topic I cover in both electronic print as well as over the virtual airwaves the respect it is due through thorough research and a balanced and objective approach to the many sides of what are often controversial stories.

My reasoning is that even though I cannot truly experience the first hand emotions and perspectives of my guests who are the ones that have actually lived the story, I can at least provide a unique lens through which my audience can view and hopefully come to understand the circumstances of a given situation in the context of their own lives.  This contextual reference point I believe is essential to establishing a common ground that leads to greater insight and where possible answers.

Of course, and as is often the case, definitive answers are elusive.  The circumstances surrounding the pending trial of William Melchert-Dinkel, the Serial Suicide Killer as I have come to call him, is one such example in that it represents the convergence of many contradictory elements including the differences between what is considered a criminal act in the physical world versus one that is “vectored” as my most recent guest Susan Brenner so eloquently put it “through cyber space.”

(Note: the segment titled “Cybercrime, Insanity Pleas and the Right to Die: A Guest Panel Discussion” in which Professor Brenner was a guest panellist, also included TV’s Cop Doc Dr. Richard Weinblatt.)

Looking beyond the crime committed in the physical and virtual worlds debate, the uneven interpretation of laws pertaining to one’s right to die and assisted suicide alone seems to provide Melchert-Dinkel’s defense attorney with what many believe will be a solid foundation for appealing a conviction should that be the outcome of the trial – which by the way is scheduled to start in February or March of the new year.  In fact, and as intimated by Dr. Weinblatt during our December 15th segment, trials of this nature are often driven by public sentiments versus tangible legal principles and therefore the likelihood of an appeal and an eventual overturning of a guilty verdict is a distinct possibility.

It is hard to argue with The Cop Doc’s point of view, when you consider the fact that if Melchert-Dinkel had been a resident of Oregon when he sought to satiate his “thrill of the chase” desires through encouraging what he viewed as vulnerable prey to commit suicide, he would not have been charged, as assisted suicide is not illegal in that state.  It is both an interesting and ironic full-circle legal conundrum that physical geography could have and still might influence a trial’s outcome regarding actions committed in a non-physical realm.

However thought-provoking the legal aspects of this complex case might be, in the end I still believe that this story comes down to fellow human beings who for whatever reason are experiencing real emotional turmoil and are thus vulnerable to predators like Melchert-Dinkel.  What is even more disconcerting is how the obfuscated chat rooms of predatory pursuit in which even a minor such as the one Melchert-Dinkel talked into repeatedly cutting herself while he watched via webcam, could exist and flourish in the first place.

It is in this vein that Liam Casey’s December 22nd, 2010 article in the Ryerson Review of Journalism delivers the greatest impact.  Especially given the writer’s account of his own personal battle with depression and the temptation to end it all, as well as his expressed dismay with the authorities, including the media and mental health professions reluctance to report and discuss the subject of suicide in the open and scrutinizing light of a legitimate public forum.

Casey’s revelations are both timely and uniquely discerning as he is someone who has walked in the proverbial shoes of the Mark Drybroughs and Nadia Kajoujis, providing us with a two-way lens on a subject that the majority of us will hopefully and prayerfully never know on such an intimate and first-hand basis.

As a result, his observations that “Suicide avoidance is a throwback to journalism’s dark days, a time when editors and news producers could choose to ignore unpleasant matters,” is noteworthy, as is his contention that “the industry can no longer justify failing to cover a tragedy that will affect so many people, in one way or another, at some time in their lives.”  The statistics he cites in support of his latter statement is startling as I would count myself amongst the 83 percent of Canadians who responded to an August 2010 Harris-Decima poll who were unaware that “suicide is the 10th leading cause of death in Canada and the second leading cause of death for people 15 to 24.”  In short, this is not a problem that is going to go away by itself and as a result it needs to be responsibly and sensitively discussed out in the open.

Unfortunately, and as Casey reveals in his article, “psychiatrists, police and editors cite the contagion effect as the principal reason to not report suicides,” and therefore inadvertently push the issue to the darker recesses of shame and ultimately the sub-culture world of Internet suicide chat rooms where death is an honorable solution romanticized in songs like Blue Oyster Cults “Don’t Fear The Reaper.”

Valentine is done

Here but now they’re gone

Romeo and Juliet

Are together in eternity…Romeo and Juliet

40,000 men and women everyday…Like Romeo and Juliet

40,000 men and women everyday…Redefine happiness

Another 40,000 coming everyday…We can be like they are

Come on baby…don’t fear the reaper

Baby take my hand…don’t fear the reaper

We’ll be able to fly…don’t fear the reaper

Baby I’m your man…

While it should be noted that Donald Roeser, who both wrote and did the lead vocals for the song stated that he “was actually kind of appalled when I first realized that some people were seeing it as an advertisement for suicide or something that was not my intention at all,” this alluring tune still resonates with many (long after its original release in 1976), having sold approximately 922,000 digital copies to date.

While I do not want to turn this post into a discussion about artistic freedom, the point I am making is simply this . . . in the absence of societal involvement and intervention by what means are those who are most vulnerable in society engaged and by what agendas are they being influenced?

Melchert-Dinkel’s reference in an e-mail to the fact that there are others like him, and that they have found a way to commit “legal murder,” should send a collectively chilling wake up call to all of us that by continuing to avoid meaningful discussion regarding suicide, we are to a certain extent creating the dark alleyways of abandonment where more people will unnecessarily lose their lives.

As the public health reporter with The Globe and Mail André Picard, to whom Casey referred in his article, expressed his belief that by “talking more openly about mental illness we can prevent suicides,” the words of 19 year old Suzy Gonzales, who took her life by drinking a cyanide cocktail, takes on an even stronger resonance.  Specifically, how “chat rooms are alluringly effective at muting the consequences” of taking such a drastic course of action as reflected in the following excerpt from my November 30th post Is Suicide really Painless On The Internet:

“When online, I am calm and collected,” Gonzales wrote 10 days before her death but, “give me a couple of seconds of talking about (suicide) in person and it’s the same as with the suicide hotline.”  “I get shaky and start crying. And then I just feel silly — Basically, I just need a friend who will understand me.”

Whether the Gonzales story is a reflection of our society’s discomfort with or indifference towards the subject of suicide, or a testimony to the despicable natures of the darker elements in our world, and the havoc they can wreak if left unchecked and unchallenged, it doesn’t matter.  What does matter is that we take our collective heads out of the sand and realize that with the advent of the Internet, there is no safe place in the realms of the physical world because of its pervasive and at time insidious silent entry into our homes and the bedrooms of our children.  You only have to think of the young girl who at Melchert-Dinkel’s prompting repeatedly cut herself to realize the extent and powerful reach of these new age predators.

The only question that needs to be answered is simply this . . . what are we prepared to do about it now?

January 11th, 2011 – Are the differences between a right to die choice and a victim of murder too subtle for the courts to differentiate between the two?

“The cases highlight the confusion surrounding the legal tests for murder, assisted suicide and euthanasia. Campaigners argue there should be clear guidance on how prosecutors should respond to cases where a competent adult requests help to die, and where relatives inflict death without the clear wishes of their loved ones. “The law needs to protect potentially vulnerable people by being tough on malicious or irresponsible behaviour, but it also needs to be flexible enough to show mercy when the motivation is clearly compassion”, said Sarah Wootton, chief executive of campaign group Dignity in Dying.”

(Opening paragraph from the article Kay Gilderdale case: A clear verdict on the law’s confusion on assisted suicide by Afua Hirsch, Guardian.co.uk Jan. 25th, 2010)

On April 11th, 2011 the WilliamMelchert-Dinkel trial in which the former Minnesota nurse stands accused of violating Minnesota’s assisted suicide law in the deaths of Canadian Nadia Kajouji and UK resident Mark Drybrough will finally begin.

While we will once again welcome our panel of experts including NCR Distinguished Professor of Law and Technology Susan Brenner, TV’s Cop Doc Dr. Richard Weinblatt and criminal profiler Pat Brown to discuss what we might expect from the trial in a 90 minute Special on April 10th at 8:30 PM EST, there is one thing that is certain . . . the uncertainty surrounding assisted suicide laws and how the jury will ultimately respond to the evidence that is presented in the Rice County courtroom.

Never one to sit idly by and wait for information, I thought that I would dig even deeper into my research notes to see if there was any way to determine if there was legal history or precedence that could be used as a reference point relative to a possible verdict under circumstances similar to the pending Melchert-Dinkel adjudication.  Ignoring the fact for the time being that the crimes for which the defendant has been accused occurred over the Internet, I wanted to examine the potential boundaries between a person’s right to die and the potential risks posed by predators who with seeming alacrity troll the suicide chat rooms for vulnerable individuals or victims.  I use the word victims in the context of someone who, without the intervening prompting of another individual, would not otherwise have chosen to commit suicide.

Unfortunately, instead of finding answers I found more questions as demonstrated by the different verdicts referenced in the Guardian article.

In the Kay Gilderdale case, in which the presiding judge asked “why did this come to court?” the jury cleared the accused of murder resulting in Gilderdale being given a 12 month conditional discharge.  Conversely Frances Inglis, the mother who injected a lethal dose of heroin into her son, was found guilty and subsequently sentenced to 9 years in prison.

The key difference between the two cases according to legal experts is that with Gilderdale her daughter gave clear indications of her intent to die as a result of a previous suicide attempt and the execution of what was referred to as an “advance decision” or living will in which a person that is ill can stipulate that they do not want to “receive life-sustaining treatment in advance.”  No such intentions were demonstrated by Inglis’ son.

It seems to be straight forward however, and in line with a comment made by Professor Brenner during our December 15th segment Cybercrime, Insanity Pleas and the Right to Die: A Guest Panel Discussion she posed the question, if the people who committed suicide at the urging of Melchert-Dinkel did not intend to take their lives, then why did they visit the chat rooms in the first place.  In short, does ones presence and/or participation within the virtual realms of a suicide chat room sufficiently indicate the prerequisite intent associated with the Gilderdale trial?  If it does, should Melchert-Dinkel be acquitted?

Many would of course argue (and yes I would be one of them) that neither Nadia Kajouji nor Mark Drybrough are on trial here, only Melchert-Dinkel.  When one reads his ready acknowledgment that he pursued these individuals in a “thrill of the chase” frenzy that was so compelling that he had to – and again in his own words – check himself into a local hospital complaining of an “addiction” to suicide chat rooms, it is more than reasonable to view his actions as being malicious and predatory.  His references that others on the Internet had found a way to “commit legal murder” do little to assuage this position.

As stipulated on many occasions, I myself am not a lawyer and for this reason the April 10th segment with our expert panel promises to be a very interesting and lively discussion.  Be sure to tune in as we will be opening both the chat room and toll free lines for you to weigh in on this complex and emotionally charged trial.

January 23rd, 2011 –  A Plea for Justice in the Melchert-Dinkel Case?

“[t]he process whereby the ACCUSED and the PROSECUTOR in a criminal case work out a mutually satisfactory DISPOSITION of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count INDICTMENT in return for a lighter sentence than that possible for the graver charge.”

(The Definition of Plea Bargaining courtesy of The Encyclopaedia of Everyday Law)

According to the Encyclopaedia of Everyday Law, “more than 90 percent of criminal convictions come from negotiated pleas;” meaning that “less than ten percent of criminal cases go to trial.”

Now you might be asking why I would be writing about plea bargaining in relation to the Melchert-Dinkel case, given that the trial is scheduled to start on April 11th, 2010 in Rice County Minnesota.  The answer is pretty simple . . . a Settlement Conference has been scheduled for February 17th.

According to court records, the purpose of this hearing is to attempt to settle the case before going to trial and make sure everything (motions) are taken care of before trial.

Besides judicial housekeeping relative to motions et al, the Settlement Conference is a normal part of any adjudication whether it be criminal as in the case of Melchert-Dinkel, or civil re one company suing another.

Regarding Melchert-Dinkel, if the defendant pleads guilty at this hearing, a Sentencing hearing date will be scheduled or the judge will sentence the defendant.  Conversely, if the defendant continues to plead not guilty, the jury trial will begin on April 11, 2011.

For those unfamiliar with the legal process, the concept of a Settlement Conference can raise many disturbing questions, especially given the fact that plea bargaining has been maligned as being a vehicle for accelerating throughput versus dispensing justice in the American court system.

When faced with as complex a case as Melchert-Dinkel’s, the temptation for the Rice County DA to settle is likely significant as he would be able to avoid losing at trial and therefore having to respond to questions as to why he failed in what will undoubtedly be a very high profile trial.  In short and as any lawyer will tell you nothing, regardless of the evidence, is a foregone conclusion when a case comes before a judge.

Another possible point of leverage that the defence is likely to use is that even if the DA wins the case, as Dr. Weinblatt pointed in our December 15th panel discussion (Cybercrime, Insanity Pleas and the Right to Die: A Guest Panel Discussion), many incendiary trials that are influenced by public sentiment versus the letter of the law so to speak can be overturned when a conviction is presented to a higher court on appeal.

On the defendant’s side of the fence, the uncertainty factor with going to trial swings both ways meaning that a conviction is still a conviction and there is no guarantee that a higher court will throw out the verdict.

This is why the possibility for a successful plea bargain generally speaking is so high.  If Melchert-Dinkel’s lawyer and the Rice County DA are open to the possibility that the case can be settled without the time and expense of a lengthy trial, then the type of plea negotiation will come into play.

Referencing our ever handy Encyclopaedia of Everyday Law, plea bargaining involves three areas of negotiation; Charge Bargaining, Sentence Bargaining and Fact Bargaining.

With Charge Bargaining, the defendant pleads guilty to a lesser charge and thereby avoids having to stand trial on more serious charges.  This is an interesting option in that one would be hard pressed to come up with a lesser charge that relates to Minnesota’s assisted suicide law, the violation of which is the basis for Melchert-Dinkel being brought to trial in the first place.

Sentence Bargaining would mean that Melchert-Dinkel would plead guilty as charged, and in return would receive a lighter sentence.  Under Minnesota’s Suicide-Aiding law (609.215 subd. 1), if convicted Melchert-Dinkel would face a sentence of “Imprisonment of not more than 15 years or a fine of not more than $30,000 or both.”

It is anyone’s guess at this time as to what if any period of incarceration and/or fine would be acceptable to the defence, especially given the possibility of a guilty verdict and being subjected to the good sense of the presiding judge relative to sentencing.

The presiding judge in this case is Thomas M. Neuville who prior to be sworn in as Judge for the Rice County District Court on January 10th, 2008 was a member of the Minnesota Senate whose special legislative interests included crime and public safety, prisons, child support reform, courts and judicial selection, health care reform, family, cultural and life issues.

Born January 31st, 1950, Neuville is a member of the Republican Party of Minnesota and a father of 5 children, who is also a Catholic.  Given his background especially his legislative interests I am not certain that I would want to be Melchert-Dinkel standing before him for sentencing after being convicted of violating the State’s Assisted Suicide law.

Finally, there is Fact Bargaining, where an admission to certain facts (“stipulating “to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.  Unlike the Charge and Sentence bargaining, Fact bargaining is the least used negotiation in plea arrangements, and quite frankly is not likely to in and of itself have a role in any discussions between the DA and defence counsel.

Whether this case ends up as the majority of criminal cases which are settled through the plea bargaining process, or by way of an actual trial verdict like OJ Simpson, Melchert-Dinkel has for all intents and purposes become a Pariah in his community meaning that the prospects for any kind of normal life is practically nil.

This is little comfort to the victims’ families as well as those who like myself, are angered at the defendant’s callous and self-gratifying actions.   Perhaps the fact that he will ultimately have to answer to a higher authority one day means that justice will inevitably be delivered.

In the here and now however, we are manacled to a legal process that for better or for worse is still one of the best, if not the best, in the world.  To some, this is where the buck stops!

February 6th, 2011 –  Melchert-Dinkel removes the wild card factor from trial by opting for judge over jury

Jury trials are like “riding a ship into a storm,” because they are much less predictable than bench trials.

(The above is a quote from French criminal lawyer, university professor and politician Robert Badniter)

William Melchert-Dinkel’s decision to choose a judge to determine his guilt or innocence (otherwise known as a bench trial), over having his case heard before a jury of his own peers is a testimony to the fact that public sentiment is not likely to be sympathetic to his cause.

Add into the equation, and this is according to one legal expert, that sentences tend to be longer when a jury convicts, the decision to present his case before a judge would seem to be a prudent one.  In short, there is little if any uncertainty given the nature of the crimes for which the former nurse from Faribault stands accused, that a jury conviction would be a very real possibility.  Yes, it could be overturned on appeal to a higher court as jury’s such as in the case of OJ Simpson, on occasion demonstrate a propensity (at least more than a judge) to be influenced by circumstances as much as if not more than the technicalities of the law.

But is a bench trial really any more likely to render a favorable verdict in those cases where public sentiment is heavily in favor of a guilty verdict?  It depends.

One thing is certain this opens up the door to any combination of variables whether Melchert-Dinkel is found to be guilty or innocent.

For starters, and unlike a guilty verdict being reached by a jury, if a judge finds you guilty, he or she has discretion when sentencing to suspend jail time.  Interesting thought given the converging complexities of the Melchert-Dinkel case which include variables such as right to die legislation, freedom of speech and the differences between crimes in the physical versus virtual worlds.

In essence, a judge who is faced with an apparent conflict between the letter of the law and public sentiments might appease both (and in the process defer making new law to another trial in another jurisdiction), by finding Melchert-Dinkel guilty but suspending his sentence.

Once again the above is an exercise in pure, but nonetheless interesting, speculative musings.  Over the next week, I will delve more deeply into the differences between a trial by jury and a bench trial focusing on the various elements of each one, and what they might mean in terms of either a guilty or innocent verdict in the Melchert-Dinkel trial.

Stay tuned!

February 16th, 2011 –  Melchert-Dinkel Defense Attorney is Earning His Pay with Lothenbach Plea

What is The Lothenbach Plea?

Basically, it is where a defendant does not challenge the facts of a case and therefore allows them to be submitted to a judge without contention for adjudication.  Based on said submission the judge will review, and then decide or render a verdict.

Here’s the thing, even if the judge finds the defendant guilty (which is likely in the Melchert-Dinkel case), the defendant can, without objection from the prosecuting attorney, take the case before the Appellate Court to challenge the denial of pre-trial motions which contend that the even with the acknowledgment of said facts, the case should not have come to trial in the first place.

In short, and with regard to Melchert-Dinkel, everything that the prosecution claims I did is true but . . . it doesn’t matter because the pre-trial motion requesting a dismissal of the case based on the violation of my right to Freedom of Speech in encouraging two (and more) people into taking their own lives, should have been granted.

It is the ultimate “I did it . . . so what claim,” that can only be accessible through a justice system that allows the technical aspects of the law to outweigh moral considerations.  Or to put it another way, it has created yet another buffer which separates the actions of Melchert-Dinkel from the potential consequences associated with public outrage.

Adding insult to injury of course and, reflecting the sentiments expressed by esteemed law professor Susan Brenner during our December 16th broadcast, who had suggested that by hanging around suicide chat rooms the victims put themselves in harm’s way, Melchert-Dinkel’s lawyer Terry Watkins has argued that the victims were predisposed to committing suicide and his client didn’t sway them by making statements online.

While no one, not even the creative legal mind of Watkins, can honestly say what was or was not going through the minds of the people who ultimately took their lives, just because someone is standing on the ledge of a building does not mean that you have to cheer them on in terms of jumping.

Further to this point, even if someone is on a ledge it may be more of a cry for help than being an actual reflection of an intention to jump.  Yes, both Mark Drybrough and Nadia Kajouji frequented the suicide chat rooms.  It is also true that both talked about taking their own lives.  However, and taking into account the value that we has a nation place on human life, unless you can read the hearts and minds of people with absolute certainty then maliciously encouraging and enticing people to take their lives to satisfy an obsessive “thrill of the chase” desire is morally reprehensible.

However, the law is not based solely on society’s moral sensibilities (although it should reflect them).  Nor for that matter, has Melchert-Dinkel lawyer Watkin’s claimed that his client’s actions were morally honorable.  The issue at hand is whether or not his client had the right to write what he did in the chat rooms, regardless of the consequences.  It is upon this point of law that the Appellate Court will hear the case and ultimately decide Melchert-Dinkel’s future.

So what are these points of law that shadow or perhaps obfuscate social and/or moral responsibility, particularly as it relates to the contested pre-trial motions that were denied in the Melchert-Dinkel case?

Well, besides the right to free speech, one of the more pertinent reasons given for justifying the motion to dismiss is linked to the purported vagueness of Minnesota’s assisted suicide law.

In his May 27th, 2010 post on the Legal Match: Criminal Law blog, Rusty Shackleford writes “without a very clear and rigid definition of what it means to “encourage” suicide, the law under which this former nurse is being charged is almost certainly so vague as to be unconstitutional.”

Shackleford then makes the statement that “the constitution allows certain laws to be “void for vagueness” if they don’t put people on reasonable notice of what is and is not prohibited,” and that “due process requires that laws be written clearly enough that a reasonable person would have a good idea of what the law actually says.”

In the context of the above, here is an interesting question . . . to what degree should Melchert-Dinkel’s admission that he knew what he was doing was wrong and probably against the law be taken into consideration?  Doesn’t this show prior knowledge as well as establishes the pre-requisite intent to find him guilty?

Even taking into account Shackleford’s post which admonishes the State “to choose their words more carefully next time” regarding the vagueness of the current wording of the assisted suicide law, should the accused get off solely on the basis of legislative wording?  After all, aren’t Shackleford’s expressed issues with the apparent vagueness of the law tied to concerns that it doesn’t “put people on reasonable notice of what is and is not prohibited?”

Once again, and keeping in mind that said admission has also been challenged by Watkins via a pre-trial motion, the larger issue is can you or for that matter should you sift out the moral and legal recognition on the part of the defendant that what they were doing was wrong despite the purported vagueness of the law as it is written?

What about taking into account the possibility that in his profession as a nurse, Melchert-Dinkel would have had a greater awareness or sense of the law concerning such matters as assisted suicide?  Shouldn’t his elevated awareness as a result of his being a health care professional also be considered?

Based on a May 15th, 2008 article “Does a therapist have to report me as suicidal if I tell her I self-injure?,” in which Dr. Mark Dombeck Ph.D. acknowledged the gray areas regarding the question posed by a reader, he nonetheless emphasized the fact that In most USA jurisdictions, psychotherapists (at least the licensed ones) are mandated by state law to report certain behaviors to responsible authorities (e.g., the police, physicians, etc.).  He went on to write that like homicidal intent, suicidal intent is always a reportable issue.

Not wanting to stray too far off the main focus of today’s post, while some might point to a possible violation of doctor-patient confidentiality, the state’s interest in preserving life and preventing abuse according to Dr. Dombeck, trumps the right to confidentiality. Psychologists, continued Dombeck, who do not report when they are supposed to report can face legal sanctions.

An added dimension to this train of thought relative to vagueness and heightened responsibility is whether or not Melchert-Dinkel’s encouragement carried more weight based on the fact that although operating under a pseudonym he was in fact presenting himself as a nurse to those he counselled.  This would imply, at least to a certain degree that he was dispensing advice in his professional capacity as a health care provider.  One would have to ask if his encouragement would have carried as much weight if he had told his victims that he was a truck driver.  It is obvious that Melchert-Dinkel considered his medical background as being important otherwise why even mention it?

For me, this is the critical point of these legal proceedings.  If Melchert-Dinkel was advising people in his capacity as a nurse and the Appellate Court rules that he should not have been charged, does this let health care professionals in general off the hook in terms of reporting suicidal behavior?

While an extreme example, will an Appellate decision to overturn the trial judge’s guilty verdict (if this is in fact the ruling from the bench), open the door to police officers or firefighters having the freedom to join a crowd in cheering on a jumper to step off the ledge versus reaching out to the distraught in an effort to save them?

In the end, and even though the individuals who took their lives ultimately did so by their own hand, if a Melchert-Dinkel walks, what does it say about us as individuals and as a society as a whole?  What does it say about our justice system (note I used the word justice instead of legal), when the technicalities of the very laws that are designed to protect us take precedence over personal responsibility and moral sensibilities?

I guess we will have to wait to see how this plays itself out over the coming weeks to answer these questions?

February 24th, 2011 – Young girl’s YouTube video talking about Melchert-Dinkel Suicides and Death is troubling on so many levels

The age of the young girl (whose face we never see) talking in the videos about William Melchert-Dinkel and how he enticed Nadia Kajouji as well as others to take their lives while he watched, as well as death in general, is not known.

But listening to the obvious sweet innocence of her tender voice it is hard to imagine that she is any older than 13 or 14 years.

Right off the bat as I hear her gentle and youthful ramblings while filming the Fifth Estate television show’s screen on her computer’s monitor – which at one point displays a menacing picture of Melchert-Dinkel above the words Justice For Nadia, I cannot help but wonder why someone so young sits in a room with shades drawn discussing the horrors of an adult world that seems to have gone awry.

I have always been a champion for social media and social networking because of the access it provides to individuals who might not otherwise experience the world as it is happening.  Certainly I have at times questioned whether this increased access equates into a proportional increase in awareness and understanding but, I nonetheless applaud this ability to connect globally if not always intimately.

However, as I watched the videos that have only had a handful of views, I felt a somewhat sombre turn in my stomach as I tried to decipher her apparent empathy in talking about suicide and why you shouldn’t do it (because it will make your parents sad she would say).

While she mentions a brief conversation with her father, who offers encouragement by suggesting that she focus her attention on happier things, it just doesn’t seem right for such a young girl to be sitting in a shaded room talking to the virtual void that is the Internet about matters that quite frankly should be the furthest from her mind.

At her age I was more concerned with sports, girls and one day in the very near future getting my driver’s license.  Suicide and even death were little more than vague concepts relegated to the dramas on the idiot box, warranting little if any of my attention.  Hence the reason why I used the picture from the film American Graffiti as the lead image for this post.

Do not get me wrong as I do not for a moment think that she herself is contemplating doing herself harm.  If I thought otherwise, my first course of action would be to contact the authorities.  What is troubling as indicated above is the fact that such a young person would even be compelled to talk about such a serious “adult topic.”

February 28th, 2011 – Arguments surrounding the Melchert-Dinkel trial may be lengthy but the underlining focus is the assignment of blame

While you will not likely be inclined to review the summarized positions by both the prosecution and the defense in the bench trial of Serial Suicide Killer William Melchert-Dinkel documents in their entirety – especially the 100 page defense submission by Melchert-Dinkel lawyer Terry Watkins, the underlining focus is on assigning blame.

While Rice County prosecutor Paul Beaumaster clearly points to Melchert-Dinkel’s predatory pursuit of vulnerable victims in the suicide chat rooms of the virtual world in what by the defendant’s own admission was a “thrill of the chase” exercise to satisfy his macabre interest in suicides and hangings, the defense has taken the position that these people were lost causes in that they already had the inclination towards taking their lives.

While asking the judge to ignore the sleazily odoriferous dialogue perpetrated by Melchert-Dinkle during his exchanges with his victims, such as with Nadia Kajouji in which he posed as a young female nurse (a troubling issue that still bothers me in that had he thought what he was doing was right, why resort to subterfuge?), Watkins referenced the fact that Kajouji was bisexual, possibly pregnant and obviously troubled, as a means of lessening the impact of his client’s involvement.  In short, and if you take the defense’s argument at face value, she was a suicide waiting to happen.  Or to put it another way, Melchert-Dinkel’s actions had no bearing on the outcome in either the Kajouji or Drybrough suicides, or the purported suicides of at least three other people.

In contemplating his actions, I think that it is important at this point that we not forget about his interaction with minors such as the 16 year old girl from the Netherlands whom he encouraged to repeatedly cut herself while he watched via his webcam (PI News Special: Melchert-Dinkel Counselled and then Watched via Webcam as 16 Year Old Girl Cut Herself), as a means of illustrating just how far he was willing to go to satiate his sickening desires.

As indicated, the likelihood that most people who review either the prosecutor’s case or defense’s arguments in their entirety is understandably remote.  However, and beyond the summary for each document that is provided below the corresponding SlideShare Viewers, I would suggest that what you do read are the online exchanges between Melchert-Dinkel and both Kajouji and Drybrough from the submission by the prosecutor, before you look at the defense’s provision of witness testimony as to the accusatory fragile state of the victims’ mindset.

While this case will inevitably be decided based on the interpretation of the law, and likely by the Appellate Court, I cannot help but think of the following analogy that if a person is walking precariously close to the edge of a cliff do you reach out to keep them from falling or, do you push them over the edge.  Melchert-Dinkel chose the latter and did so for nothing more than perverse, self-serving gratification.
While the legal liability regarding his actions is up for debate, I do not think that anyone would argue with the moral reprehensibility of his conduct.

Furthermore, and citing the following statement from Thomas Jefferson which has been attributed to the observation that “The Constitution is not a suicide pact,” perhaps the courts should remember that the law is here to serve the people, versus the people serving the law:

“A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

March 16th, 2011 –  The Verdict Is In! Melchert-Dinkel Is Guilty . . . For Now!

However, the law is not based solely on society’s moral sensibilities (although it should reflect them).  Nor for that matter, has Melchert-Dinkel lawyer Watkin’s claimed that his client’s actions were morally honorable.  The issue at hand is whether or not his client had the right to write what he did in the chat rooms, regardless of the consequences.  It is upon this point of law that the Appellate Court will hear the case and ultimately decide Melchert-Dinkel’s future.

(Opening paragraph from the February 16th, 2011 PI Window on Business post Melchert-Dinkel Defense Attorney is Earning His Pay with Lothenbach Plea)

From the moment I had first heard about this case, and throughout our extensive coverage (which has included exclusive stories and interviews), it has been a journey of contradictory extremes where moral sensibilities collided with legal technicalities in the uncharted realms of the virtual world.

Suffice to say, and while you strive hard to maintain a detached objectivity, you cannot help but be drawn into the maelstrom of emotions and moral debates that have for many, made a life-altering impact.

For the families of Melchert-Dinkel’s victims, whose heartache began long before this “thrill of the chase” predator stalked their loved ones, yesterday’s verdict must feel somewhat like a Pyrrhic victory of sorts.  With suicide rates climbing – according to one U.S. report, suicide is the third leading cause of death in teenagers and the fourth leading cause of death in pre-teens, the challenges of loving and caring for someone in pain only to see them take their lives at the prompting of another will likely compound the angst and confusion as to why this had to happen.

When you also consider the fact that Melchert-Dinkel had previously intimated the existence of a predator network when he had made references to finding a way to commit “legal murder,” the possibility that other families may face a similar fate in the future is very disconcerting.

While we should have no illusions regarding yesterday’s verdict, even if it is upheld in the Appellate Courts, that this will necessarily deter those who share Melchert-Dinkel’s compulsions, it is nonetheless an important outcome as it reflects a moral value that transcends the legal wrangling’s relating to First Amendment Rights and the purported vagueness of the law upon which the criminal charges were based.  At least for the moment, the verdict connects us with our humanity that has far too often been lost in the contentiousness of a world that seems to be at odds with itself.

March 17th, 2011 – Despite Melchert-Dinkel being found guilty, Nadia Kajouji’s mother finds little solace in verdict

You would think he’d use this opportunity to once again question the lack of action on the part of the Ottawa police, and even to question why M388 has not yet been passed into law. From his release one who didn’t know better would actually assume this was a Canadian victory rather than a victory in spite of the Canadian authorities.

(Deborah Chevalier from Facebook comment stream regarding MP Harold Albrecht’s press release)

Over the past few months I have had on several occasions the opportunity to talk with Deborah Chevalier through either e-mail or when she was a guest on the September 1st, 2010 PI Window segment Is The Internet A Safe Haven For Serial Killers?.

It has been an interesting relationship in that I cannot even begin to imagine what she must be feeling beyond a trace understanding as a result of my being a parent.  This has made our rapport challenging at times, in that as a writer I never wanted to lose sight of the very real and emotional familial impact resulting from her daughter’s death, while still maintaining the necessary level of objectivity to effectively and accurately report the facts surrounding a case which on so many levels represents a seminal turning point relative to assisted suicide laws and criminal liability in the virtual environs that is the Internet.

Let’s be honest with ourselves folks . . . while the Melchert-Dinkel story has captivated the media’s attention since it entered mainstream consciousness, at the end of the day we will all to varying degrees move on to the next big story.  It is a fact of life that our attention span associated with the life events of others has a limited shelf life.  Even the Japanese earthquake will one day fade into a somewhat ephemerally muted recollection that like so many other intensely acute occurrences cedes to the here and now realities of the day.

In the meantime, and left in the wake of our passing awareness, are the individuals like Deborah Chevalier who continue to be directly affected by what was previously the news of the day.  Reminiscent of the feelings I had on the Sunday following my father’s funeral in which after the whirlwind of family and friends coming into our lives had moved on to their own every day existence, I can still remember the ominous void of loneliness with which I was left to deal in terms of the death of a man who had such a significant impact on my life.

This perhaps would explain more than anything else why the hoped for verdict, convicting the man responsible for propelling  her daughter’s latent predisposition towards death into a nightmarish reality, would itself produce an empty discontent relative to the interlopers of outside interests whose persevering motivations are reasonably suspect.

Despite the favorable outcome relative to Melchert-Dinkel being found guilty, Deborah Chevalier’s questions as to why M388 has not yet passed into law has to be explained beyond the usual political speak of expressed empathy for her loss, as does that absence of police action north of the 49th parallel.  Whether or not those answers will be forthcoming in both the time frame and manner for which she is hoping remains to be seen.  And even if they are, to what extent will it help her to find what must be an elusive peace and closure.

Last Case Diary Entry

 

The case of William Melchert-Dinkel is not yet over has there is a final stanza in this long and troubling journey through the legal system from the initial laying of charges by police, to the judge’s guilty verdict.

That being said, it is the practical elements from an insider’s perspective of the case itself that provides the broader lens through which policing the Internet must be viewed.

The only question you as a member of a globally borderless society must consider goes back to Professor Susan Brenner’s statement regarding the reconciliation of virtual and physical realities in terms of law enforcement starting with the basic premise of criminal law which is “preventing the infliction of harm.”

If you consider emotional harm to be has real as physical harm, then it is perhaps in that reasoning where you will ultimately find the answer.

Chapter 6 – This Is Going To Hurt Me More Than You . . .

Note: The following is part of the series of full chapter excerpts from my latest book, a collaborative effort with television’s Cop Doc, Dr. Richard Weinblatt, Tasers, Abortions and Parenting: Behind the Curtain of Policing America.  Click on the title to obtain your copy of the complete book today.

“It’s not like it was an 8- or 9-year-old who was out there. This is a good-sized individual,” Ramsey said. “He doesn’t have the number 17 stamped on his forehead, you have no idea how old he is, but it’s inappropriate for him to be out on the field. And unless I read something to the contrary, as far as I’m concerned, that officer acted appropriately, and I support him 100 percent.”

Police Commissioner Charles Ramsey in the myfoxphilly.com article “Police Taser Phillies Fan as He Rushes the Field” (May 4th, 2010)

In a June 2nd, 2008 article which appeared in The New Yorker, writer Alec Wilkinson referenced a comment made by non-lethal weapons expert Charles Heal, in which Heal stated that “lethal weapons are defined by their capability,” while non-lethal weapons are “defined by their intent.”

With the latter, the intention is to “resolve a crisis without anyone getting badly hurt or killed.”  This is a concept with which we believe almost everyone can both grasp and support.

Yet despite the merits associated with using non-lethal weapons as a means of restoring order without fatal or debilitating “long-term” consequences, the controversy surrounding their use have riled everyone from Amnesty International to the UN Committee Against Torture.

For example, the UN Committee released a statement in November 2007 indicating that the “use of Taser X26 weapons, provoking extreme pain, constituted a form of torture.”

In defending the decision to use a Taser to bring down an unruly fan by suggesting that “It’s not like it was an 8 or 9 year old who was out there,” Philadelphia Police Commissioner Charles perhaps inadvertently implied that using even a non-lethal weapon on a child would be inappropriate.  However, and according to Amnesty International, police officers have in fact used Tasers on “schoolchildren, pregnant women and even an elderly person with dementia.”

In any debate regarding the use of non-lethal weapons, this leads to an interesting question; what would the police have done to “resolve the crisis” in the above referenced situations if a non-lethal weapon was not available?

Take the March 2008 story in which an 11 year-old girl with a learning disability was shocked with a Taser after she punched a police officer in the face?  According to Amnesty International, police were called in after the child had become “disturbed,” and started “pushing desks and chairs, and spitting at staff.”  If the responding officer did not have a Taser with him, chances are that a physical confrontation might have escalated, perhaps resulting in serious injuries to both the child and the officer.

In an interesting twist, and referring once again to the Seattle police officer who punched an unruly women that had become physically aggressive when he attempted to issue a citation for jaywalking, might that situation have been averted if the officer carried a non-lethal weapon such as a Taser?  Even if a physical confrontation was inevitable, would the site of the officer Tasering the woman into submission versus punching her in the face had been deemed more acceptable by what became an outraged public?

These are important questions in that they are within the subjective realm of use through accessibility.  In essence, does the ready availability of non-lethal weapons lead to a shoot first, ask questions later type of mentality on the part of law enforcement?  After all, isn’t it considerably easier to immediately subdue a potential threat versus engaging in an elongated and in some cases unpredictable process in which a tragic outcome may be the end result?

The issues’ surrounding the use of non-lethal weapons takes another interesting turn when you take into account Amnesty International’s report that 50 of 334 deaths nationwide were according to “medical examiners and coroners” directly linked to “Taser shocks.”

Certainly a June 2008 judgement against Taser International on February 19th, 2005 does little to alleviate public concerns about safety.  In the judgment, a California jury found that “shocks from the company’s devices contributed 15 per cent to the 2005 death of 40 year old Robert Heston.

The company, which was ordered to pay more than $6 million in damages, was found to be negligent in that they failed to warn police of the dangers of what was termed “prolonged deployment,” which purportedly increases the risk for cardiac arrest.

Another case that received considerable international attention was the October 14th, 2007 death of Robert Dziekanski, a Polish immigrant aged 40, who was Tasered five times by RCMP officers at the Vancouver International Airport.

The officers, who responded to a call which alleged that an obviously agitated Dziekanski was “pounding on windows and throwing chairs and computer equipment,” originally attributed his death to a rare condition called excited delirium.”  According to a CBC News report this condition, which causes an irregular heartbeat from which the individual can suddenly die, is usually associated with the use of drugs such as cocaine.  It can also occur with psychiatric patients.

Ultimately, the coroner concluded that Dziekanski died as a result of the “stress from both the Taser stuns and the struggle with police.”

The final inquiry report, which was released on June 18th, 2010 concluded that “the RCMP were not justified in using a Taser against the Polish immigrant and that the officers later deliberately misrepresented their actions to investigators.”  At the time of the publication of this book, five RCMP officers involved were being pursued on perjury charges.

This finding coupled with growing concerns over proper use opens the door to questions that go beyond the previously asked what would police do if a non-lethal weapon option had not been available?  As a means of examining the merits of using non-lethal weapons as a viable law enforcement tool, we will present a before and after picture in which we will present data such as death and long-term injury rates associated with confrontations between police and the public prior to their introduction.

We will then compare that to the death and long-term injury rate following the introduction of non-lethal weapons.

Throughout this process we will simultaneously review how policy and legislation regarding the use of both lethal and non-lethal means has evolved as this will provide the corresponding guidelines that are supposedly enacted to provide guidance to the officer in the field.

Finally, we will also examine the development of these non-lethal weapons as a means of determining if the availability of safer, yet still effective devices can become that all important bridge between intent and practical execution on the front lines.

As what has been referred to as the better known of the non-lethal weapons, Tasers actually go back to the late 1960s and early 70’s when NASA researcher Jack Cover built a device he named after his childhood hero Tom Swift.  Called the Taser Public Defender, the device used gunpowder as its propellant which led the Bureau of Alcohol, Tobacco and Firearms (ATF) to classify it as a firearm in 1976.

Its use by U.S. law enforcement according to a May 2005 NewScientist Tech article, did not become popular until the 1990’s.  Even then, controversy surrounding its use perhaps served as a good indicator of what was to come, as a unit provided to the Los Angeles Police Department by Tasertron (a company later absorbed by Taser International) failed to subdue Rodney King.  The rest regarding the King incident is of course history.

Looking in part to improve upon earlier models, and motivated by the “shooting death of two of his high school acquaintances,” Taser International CEO Rick Smith and his brother Tom began investigating what they referred to as a “safer use of force option for citizens and law enforcement.”

But is it in fact a safer option?

In a November 18th, 2006 article by Silja J.A. Talvi “Death by Taser: The Killer Alternative to Guns,” the former chief of the Seattle Police Department and author of the book Breaking Point Norm Stamper, himself a sometimes controversial figure for his stance on drugs and other issues, said the “impetus for Tasers came from the often community-led search for less-than-lethal police weapons.”  According to Stamper, there were “too many” questionable or bad police shootings due to the “many ambiguous situations” where a moment’s hesitation could lead to the death or deaths of both law of both police and others.

The Seattle chief`s reference to ambiguous situations is worth noting as reflected in a 1992 paper “Police Officer Decision-making In Potentially Violent Confrontations,” by Lorie A. Fridell and Arnold Binder.  In referencing the fact that “research on police use of deadly force has improved significantly over the years” in the critical areas of both coverage and the use of more valid dependent measures,” Fridell and Binder reached a number of interesting conclusions.

In what was referred to as “broadening” the “conceptualization of deadly force,” the paper’s authors focused on two key areas as a point of reference for their analysis.  In addition to utilizing the Binder and Scharf (1980) and Scharf and Binder (1983) models, which characterize police-citizen encounters “in terms of a series of events and decisions stretching back in time before the deadly force decision is made,” the 1992 paper also took into consideration those “armed confrontations between citizen and police officer where a police shooting could reasonably be expected, whether it occurred or not.”  This method which is similar to the airline crash investigation process, allowed what the authors referred to as “comparisons across factors related to the model of deadly force incidents and incidents in which deadly force could have been used but not.”

The results concluded the paper’s authors “pinpoint several directions for future investigation.”

To start, preliminary findings indicate that “deadly force situations, more than shooting situations, are characterized by ambiguity and surprise” seem to corroborate Stamper’s conclusion that situational ambiguity is a contributing factor in the ultimate use of deadly force.

Combined with uncertainty of their “opponents” state of mind, another telling aspect of the above conclusion is that deadly force scenarios occurred when the majority of officers had not originally perceived the situation as being a “possible deadly encounter.”

This introduces an interesting hypothesis surrounding the Vancouver Airport Tasering death, or for that matter any of the deaths in which the use of non-lethal weapons turned lethal, that calls for further investigation.  Specifically, it is our position that the Binder Scharf model should be used as a means of analyzing police – citizen encounters involving both non-lethal as well as lethal weapons. This is based on the fact that there appears to be a parallel in terms of situational ambiguity, initial exchanges between police and opponent, and the sequence of events leading up to the decision to use either a lethal or non-lethal weapon.

Think of it in these terms, it is unlikely that the RCMP officers who responded to the report of an agitated passenger at the Vancouver Airport went into the situation expecting that the confrontation with Mr. Dziekanski would culminate in his death.  And there certainly is no evidence that it was their intention.  This is the ambiguity and surprise element of the equation to which Fridell and Binder had referenced in their paper.

Now it is at this point that there is a divergence in terms of police-opponent attitudes and perhaps response tendencies as it relates to being armed with a lethal weapon such as a gun, or a non-lethal weapon such as a Taser.

According to the Fridell and Binder analyses, the “Information Exchange” phase as they call it, is a critical watershed moment, as it determines if “deadly force will be used or averted.”

It is important to bear in mind that this phase often happens in mere seconds and law enforcers have to make fast decisions on events as they are unfolding before them.  As has been ruled in the courts, officers are to be judged based on what they reasonably knew at the time their decision is reached and a use of force, including deadly force, occurs.

There is a distinct possibility that the variable between being armed with a lethal or non-lethal weapon comes into play at this critical point in terms of both police and opponent attitudes.

Let’s consider the opponent or citizen side of the equation referencing a study regarding the possible advent of head injuries such as concussions in the world of sport.

In a May 2009 Clinical Journal of Sports Medicine article titled “Consensus Statement on Concussion is Sport 3rd International Conference on Concussion in Sport Held in Zurich,” the following observation was made relative to risk compensation:

“An important consideration in the use of protective equipment is the concept of risk compensation.  This is where the use of protective equipment results in behavioral change such as the adoption of more dangerous playing techniques, which can result in a paradoxical increase in injury rates. This may be a particular concern in child and adolescent athletes where head injury rates are often higher than in adult athletes.”

This is an important revelation because it may reflect a similar attitude on the part of opponents in confrontations between police and citizens in terms of the use of non-lethal weapons.   Or more to the point, to what extent does my awareness of this factor as the opponent in a police-citizen confrontation influence my attitude and response to police intervention?  Does this make me more inclined to be bolder and less “cooperative” knowing that I am not facing a gun but a Taser – which according to statistics is not likely to be as lethal as a gun?

Interestingly, it may be because of a police officer or deputy sheriff’s willingness and departmental policy enabling ability to use a Taser over a firearm that leads to anecdotal accounts of suspect cooperation.  In other words, experienced bad guys know that officers are situationally restricted and less able to use their firearm than they are with the Taser.  The Taser’s red laser dot on a person’s chest has garnered many a compliant subject.

What about the thought process and attitude of the police officer on the other side of the confrontation?  How does the introduction of a non-lethal variable impact an officer’s thought process when entering unknown and potentially dangerous situations?  To what extent does the introduction of a non-lethal policy and weapon heighten rather than reduce the intensity of police response?

While there are other contributing factors relative to how an individual situation will eventually play itself out, it would seem to be a logical conclusion that the combination of an emboldened opponent or citizen mindset coupled with a heightened intensity on the part of police would in more cases than not result in an undesired and potentially lethal outcome.  Once again, we point to the Vancouver Airport incident as one such example of an unintended outcome.

However it should be noted that we are not saying that the emboldened opponent theory is due specifically to the Taser.  There is according to experts, a societal shift with a small population of violent offenders (contrary to the overall downward trend of crime driven by aging demographics and smarter policing) who are and continue to be responsible for a rash of attacks on officers at an unprecedented rate.

Dynamics such as these were of course recognized by Binder, and reflected in his observation that, “The sequence of events over the four phases (is) assumed to be determined by three principal elements; The personal characteristics of the officer or officers, the personal characteristics of the citizen or citizens, and the context of occurrence of the armed confrontation.”

What is however worth noting as it relates to the Binder/Scharf model, is the view that today’s acute scenario has its origins in the “decisions and actions in earlier phases that may affect the decisions and actions in subsequent phases.”  This of course coincides with the stated views that we had expressed earlier in this book that incidents involving police and citizens “do not happen in a vacuum and are influenced beforehand by individual triggers,” which usually reflect “a series of failures” that can “go back years and can greatly influence the potential risk for a shooting or other tragedy.”

While the Fridell and Binder paper stresses that their findings be viewed as a “preliminary” result, it nonetheless represents a new “theoretical direction” for further investigation into the police use of deadly force.  We believe that this same model should also be used in assessing the police use of supposedly non-deadly force as the basic principles of engagement are similar if not virtually the same.

As a result, and using the above model as a baseline reference, does the introduction of non-lethal weapons actually reduce the potential for an if not deadly, then injurious encounter between police and citizens?

Using the sports equipment analogy, and in referencing the Clinical Journal of Sport Medicine article which asked the question “Is protective equipment (e.g., mouthgaurds and helmets) useful in reducing concussion incidence and/or severity,” are non-lethal weapons such as Tasers indeed a safer alternative in policing America?

It is somewhat ironic that the level of dispute regarding the data surrounding the effectiveness and safety of Taser utilization is equally prevalent in discussions about the overall effectiveness of equipment in preventing injuries such as concussions.

According to the Clinical Journal article, “There is no good evidence that currently available protective equipment will prevent concussions, although mouthgaurds have a definite role in preventing dental and oro-facial injury.”  However, the article also points out that the effectiveness of the same equipment can be different depending on the type of sport in which the athlete is engaged.  This leads to the obvious question, are there situations in which the use of non-lethal weapons is better suited than others?

Pursuing this avenue of thought, what impact or influence does law enforcement policy and government legislation have on the use of Tasers?

Staying with the sports analogy, the Clinical Journal article investigated the effectiveness of rule changes in the game itself as a means to reduce injuries.  According to the article’s findings, in “football (soccer), research studies demonstrated that upper limb to head contact in heading contests accounted for approximately 50% of concussions.”  This led the article’s authors to conclude that “rule enforcement may be a critical aspect of modifying injury risk,” and that “referees play an important role in this regard.”

If as the above article indicates, rule changes can in fact influence the rate of injuries in sport, in what way can policy influence an improved outcome in the use of non-lethal force during police and citizen encounters?

For example, what might have the RCMP officers done differently when they encountered an agitated immigrant in the Vancouver Airport who, it should be noted, spoke virtually no English?  What about the incident involving the 11 year-old girl with a learning disability who was shocked with a Taser after she punched a police officer in the face?

Like the proverbial Monday morning quarterback, in which hindsight is 20/20, reaction surrounding the Taser Death at the Vancouver Airport has been as polarizing as it has been diverse in terms of finger pointing.

Scathing assessments have been directed at the airport itself, which according to reports has been roundly criticized regarding non-functioning security cameras, the absence of translation services, and the failure on the part of the airport supervisor to engage airport paramedics after Dziekanski finally succumbed to multiple Taserings.

It is worth noting however that experts suggest that Dziekanski death can also be attributed to the stress of his encounter with police… a situational tragedy that has occurred in the past, long before the advent of Taser use of force encounters.

Even more damning was the fact that in the hours (that’s right hours) leading up to the deadly confrontation between Dziekanski and the RCMP, airport security did little to assist him in resolving his issue which was his inability to locate his mother.  Even after becoming agitated, airport security did very little to try and diffuse the situation, in essence lighting the powder keg that exploded in a fatality that all concerned believe could have been avoided.

Once again, this has led some experts to suggest that if all of the system redundancies in keeping this particular traveller comfortable and safe failed even before the Mounties were called to the scene, they were faced with little alternatives.  In other words, the situational dye was cast.

In terms of the conduct of airport staff, the Canada Border Services Agency is reviewing its procedures.

From a political standpoint, the situation has become considerably more complicated by the fact that the incident involved a Polish national, which has to say the least strained relations between the two countries.

After one Polish official demanded that those responsible for Dziekanski’s death be named and punished, the subsequent announcement that the Crown (the equivalent of the Federal District Attorney in the US) would not be laying charges against the officers involved led the Polish Embassy to issue an official statement expressing their “disappointment” with the decision.

In February 2009, almost a year and a half after the deadly encounter, Canada had unilaterally suspended its mutual legal assistance treaty with Poland, and in the process “blocking Poland’s own investigation of the Dziekanski Taser incident.”

All of this has led to several government investigations involving all political parties, with each one calling for a review on Taser use, including the establishment of national guidelines for law enforcement officers.

The response from law enforcement “has been mixed,” with a number of enforcement professionals openly criticizing the RCMP’s “handling of the situation and the aftermath.”  So much for the “Blue Wall of Silence!”

The divisions within the law enforcement community are both noticeable and telling in that the Ottawa Police Force, which was the first Ontario police force to adopt Tasers, actually held a demonstration for reporters to “illustrate their safety.”  However, the Police Department for the largest city in the country, Metropolitan Toronto, have put on hold large orders of Tasers for their front-line officers.

Many attribute the existence of these divisive contentions surrounding the use of Tasers to political and community concerns.  This has caused some in law enforcement, particularly at the line officer level, to suggest that law enforcers should just go back to the way things were before if the public is so against Tasers.  That approach, they say, would give the public what they want.  The implication in that statement is that injuries and deaths, for both officers and suspects, will likely increase to pre-Taser use levels.

This position is based on historic trending which indicates that the stress from encounters with law enforcement will be prolonged and the injuries more severe if Tasers are jettisoned from the police belt.

One would have to wonder what the effect that this division within the law enforcement community will have on the public’s perception of non-lethal weapons, and in particular Tasers themselves, especially since the general public does not necessarily see nor fully understand the forces that create the division within the law enforcement community.

Ultimately, the review of the case by retired British Columbia Court of Appeal justice Thomas Braidwood, which was released as the Braidwood Inquiry on June 18th, 2010 concluded that “This tragic case is at its heart a story of shameful conduct by a few officers,” and that “it ought not to reflect unfairly on the many thousands of RCMP and other police officers who have, through years of public service, protected our communities and earned a well-deserved reputation for doing so.”

Even though the Province’s Criminal Justice Branch had made the decision to not lay charges against the officers in December 1998, on June 29th, 2010 Special Prosecutor Richard Peck “released an opinion” indicating his belief that there was sufficient new evidence to reopen the investigation into the conduct of the four RCMP officers.

Closer to home, and with the exception of location (re a city street versus an airport) there are striking similarities between the Dziekanski incident, and the one involving Rodney King that occurred in Los Angeles on March 3rd, 1991.

Putting aside for the moment the fact that Tasers were referenced in each incident (with King the fact that the Tasers malfunctioned was cited as a contributing factor in the escalation of the level of force employed by the LAPD), the circumstances leading up to the encounter between King and the officers are notable.

Following a high speed chase initiated by the California Highway Patrol (CHP) in which King, whose blood alcohol level was nearly two and a half times the legal limit in California was at the wheel, the LAPD ordered King as well as his two passengers to “exit the vehicle” and “lie face down on the ground.”

While the two passengers complied and were taken into custody without incident, King was slow to leave the car.  When he did, and in similar fashion to Dziekanski appeared to “act bizarrely” according to reports by giggling, patting the ground and “waving to the police helicopter overhead.”

Believing that King’s gesture of grabbing his buttocks signalled that he was possibly reaching for a gun, Traffic Officers Melanie Singer drew her weapon and once again ordered King to lie down on the ground.

Then in what is described as the “swarm” technique used to subdue an uncooperative suspect, four officers’ grabbed King with empty hands with the intention of handcuffing him.  King, who at this point began resisting the officers, physically threw two of them off his back and then struck another in the chest.

Sergeant Stacey Koon then ordered the officers to “stand clear,” and preceded to use a Taser to subdue King.  While the utilization of the Taser appeared to work at first, it ultimately became ineffective.

As we know from George Holliday’s notorious tape of the police encounter with King, the police then used PR-24 side handle batons to finally gain control of both the suspect and the situation.

Even though charges of excessive force were eventually brought against four of the responding officers by the Los Angeles district attorney, the jury acquitted three of the officers on April 29th, 1992 but “could not agree” on one of the charges against Officer Laurence Powell.  It should be noted that much of the confusion over the strength of the case stemmed from the LAPD academy training at the time which called for repeated strikes with the PR-24 baton.

In obvious disagreement with the outcome, the city’s Mayor Tom Bradley made the statement that “the jury’s verdict will not blind us to what we saw on that videotape.”  He then concluded with “the men who beat Rodney King do not deserve to wear the uniform of the LAPD.”

In another eerie similarity to the Dziekanski incident, and along the lines of Special Prosecutor Richard Peck’s opinion that the case against the four RCMP officers should be reopened, the United States Department of Justice reinstated the investigation eventually obtaining indictments based on the violation of Rodney King’s civil rights.

This time around, the jury found Officer Laurence Powell and Sergeant Stacey Koon guilty (both received sentences of 30 months in prison), while acquitting Officers Timothy Wind and Theodore Briseno of all charges.

While we will avoid digressing down the path of assessing King’s own responsibility for the outcome of his encounter with police on the evening of March 3rd, 1991, including his subsequent run-ins with law enforcement that were tied to his alcohol addiction, it is clear that whether lethal or non-lethal weapons are utilized, they can invariably become part of the same reality and corresponding process associated with the Binder/Schafer model.

In the case of Dziekanski, one might ask the question had Tasers not been used would he still be alive today.  Many experts suggest that even if the Taser was not part of the equation, the “pile on the rabbit” approach which has historically been proven to be more stressful for arrestees, would likely have produced the same outcome.

In terms of Rodney King, one can only wonder what might have happened if the Tasers had actually been effective in subduing him, and thus eliminating the need for the eventual use of batons.

Ultimately the continuing debate and related chasm between those who either oppose or support the use of non-lethal weapons such as Tasers, is inherently the same as the differences in the effectiveness of the weapons in the Dziekanski and King examples: a case of either too much or too little.

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Chapter 5 – Anesthetised Parenting

Note: The following is part of the series of full chapter excerpts from my latest book, a collaborative effort with television’s Cop Doc, Dr. Richard Weinblatt, Tasers, Abortions and Parenting: Behind the Curtain of Policing America.  Click on the title to obtain your copy of the complete book today.

“They say it’s impossible to stop now, Evelyn Torres, 48, of the Bronx, said of her son’s use of antipsychotics since he received a diagnosis of bipolar disorder at age 3.  Seven years later, the boy is now also afflicted with weight and heart problems. But Ms.  Torres credits Medicaid for making the boy’s mental and physical conditions manageable. “They’re helping with everything,” she said.”

from The New York Times article “Poor Children Likelier to Get Antipsychotics” by Duff Wilson (December 11th, 2009)

Bipolar disorder at age 3?!?  Weight and heart problems at age 10?!?

While there is a certain degree of debate as to when and what children can recall in terms of early life events, it is generally believed that the vast majority can “come up with only a handful of memories from between the ages of 3 and 7.”

Commonly referred to as childhood amnesia which based upon recent studies suggest that memory encoding begins gradually at birth reaching adult levels by age 2 or 3, I cannot help but wonder with all that is happening it is hard to understand how any reputable physician can diagnose a bipolar disorder in a three year old, let alone justify the need to prescribe antipsychotic drugs.

Like the controversial discovery of a crime gene as reported in a July 2nd, 2008 article in which researchers from King’s College London claim to have found that boys who have a version of a gene are much more likely to leave the rails if they are abused when young, the concern “that young people could be labelled as potential troublemakers before they have committed a crime” is as disconcerting as the aforementioned bipolar diagnosis.

The fact that antipsychotic drugs are routinely prescribed to children as young as 3, also provides credence in terms of the fear expressed by crime gene critics that “governments may turn to the use of drugs to fight against crime, rather than tackling deep-rooted social problems.”

When you consider that antipsychotic prescriptions “are the single biggest drug expenditure for Medicaid, costing the program $7.9 billion in 2006, the most recent year for which the data is available,” a certain level of trepidation in this area would seem to be somewhat reasonable.

Leaving the broader debate that attempting to link a criminal disposition to a gene is a form of eugenics, which critics feel would target poor minority children, it is our position that “crime” is a cultural concept, and not a biological entity.  As a result, assigning blame to a particular DNA string or specific gene like the diagnosis of bipolar disorder in a 3 year old perhaps borders on the ridiculous.

Five time New York Times bestselling author Larry Winget, whose book “Your Kids Are Your Own Fault” advocates a nurture versus nature view regarding child development, unapologetically places childhood behavior and ultimately adult conduct squarely and forever on the shoulders of the parents.

Winget points to a number of disturbing trends that would seem to support his view, beginning with his assertion that studies seem to indicate that parents on average only spend 3 1/2 minutes per week in meaningful conversation with their children.  Think about that for a moment,  3 1/2 minutes!  What can you possibly teach your children and more importantly, what can your children learn about you in 3 1/2 minutes?

Perhaps this is the isolating starting point that leads to 27 out of 29 children being obese, or why only 70% of all kids graduate from high school in an era where those with university degrees are finding it tough to land a job.

Regardless of origins, there is interesting data that can be used to validate both the nurture versus nature position.  One such example that immediately comes to mind was also referenced in an earlier chapter of this book.  We are of course talking about statistics presented by the former spokesperson for San Quentin State Prison in California Vernell Crittendon during a recent appearance on the Larry King Show.  Specifically were Crittendon’s findings that a good percentage of the current prison population was 3rd and 4th generation criminals from the same family lineage.

Those who believe that a crime gene does in fact exist could point to this ancestral trend as well as a 1984 study of Danish males that were raised by adoptive parents as proof that their theories have merit.

In Jeff Milder’s November 1995 article titled “Eugenics Resurrected: Is Crime in the Genes,” results from the Danish study showed that children of repeat criminals though adopted, “were about twice as likely to be criminals themselves as the children of non-criminals.”

While the majority of genetic determinists as they are called are usually more subtle in that they postulate “the existence of genes for certain crime-encouraging tendencies such as impulsiveness and violence versus a specific criminal act such as rape and murder would tend to lend support to the Danish findings, to those who support the nurture over nature view there remain serious flaws.

Referencing a commonly cited statistic which indicates that while only accounting for 10% of the overall population, blacks in America are responsible for “one-half of all rape and murder arrests, and about two-thirds of all robbery arrests,” Milder is quick to point out that there are numerous explanations for these statistical outcomes which he outlines as follows:

“(1) blacks are more frequently the victims of economic inequality, and poor people commit more crimes than rich people, regardless of race, (2) blacks are treated by society in a way that encourages them to commit crimes, (3) blacks are more frequently arrested than whites for crimes they have committed or (4) that a large percentage of blacks contain genes predisposing them to crime. All of the explanations (or a combination of them) could explain the correlation between race and crime. But which is correct?”

Beyond the variable combination of circumstances listed above, and perhaps others that we haven’t even considered, the growing trend on the part of physicians to prescribe powerful antipsychotic drugs to children who come from a lower socio-economic class is telling.

In the December 2009 New York Times article, it was pointed out that more than 4 percent of the patients aged 6 to 17 in Medicade fee-for-service programs received antipsychotic drugs, compared with less than 1 percent of privately insured children and adolescents.

Similar to the questions we raised in chapter 3 regarding abortion, and chapter 4 regarding socio-economic influence on crime statistics, the nature versus nurture paradigm creates a which came first, the chicken or the egg scenario.  It also challenges one of the key tenets of the Declaration of Independence which states that “We hold these truths to be self-evident, that all men are created equal.”  We didn’t see a but if their black, or if they are of a lower social status in there, did you?

Unlike the September 6th, 1976 Time Magazine article “The World: Equal Before God But Not Men,” in which South Africa’s Minister of Justice, Police and Prisons James Thomas Kruger made the statement that “All men are equal before God, but all men are not equal before men because the differences are obvious,” the principles of the U.S. Declaration of Independence, through which Lincoln believed the United States Constitution “should be interpreted is what makes this country great if not always in practice at least in intent.

Facing riots at the time of the article’s publication, and blaming it on “the black-power movement based in America,” Kruger went on to say that even though South African blacks sing songs such as We Shall Overcome, they are wrong as it is the apartheid system and its National Party government that shall overcome.

Kruger then concluded his oratory diatribe with the remark that “The black knows his place, and if not, I’ll tell him his place.”

The inference by the South African Minister of Justice is pretty clear in its suggestion that blacks are somehow genetically inferior at birth.  If, as any reasonable human being would conclude, that Kruger’s remarks are not only racist but outright wrong, then how can one support the theory of a genetic pre-disposition towards crime in any form, even the muted down tendencies view?

Now some may again argue that observations such as the one presented by Crittendon that the general prison population is mostly comprised of 3rd and 4th generation criminals makes it difficult if not impossible to discount the existence of a crime gene that is passed from one generation to the next.

But we will once again turn to Hollywood, and in particular the movie Trading Places.

Trading Places continues to be an enormously popular comedy in which the wealthy Duke brothers tackle the nature versus nurture debate through a simple experiment in which the wager is a single dollar.

Recognizing the fact that their firm’s well-heeled managing director Louis Winthorpe III (played convincingly by Dan Aykroyd) was raised in affluence, they decide to expose him to the underbelly of modern society by setting him up to be arrested and then stripped of all worldly possessions, in an effort see if he would turn to a life of crime.

On the other side of this observatory coin, they bail out jail the poor street hustler Billy Ray Valentine (the irrepressibly funny Eddie Murphy), and literally drop him into Winthorpe’s present day life style including his home and his faithful butler.  The belief here is that given the opportunity to live life at the upper echelon of society, Valentine would abandon his criminal ways and become a productive member of the community.

While the story concludes with the disposed Winthorpe teaming-up with the newly self-aware Valentine to exact their revenge on the Dukes which sees the brothers lose their entire wealth, t was American philosopher and professor at Harvard University Stanley Cavell’s views on the movie that are most telling.

Drawing comparisons to the opera The Marriage of Figaro, Cavell states that it “is mostly the idea of resourceful and sociable young and poor overcoming with various disguises the conniving of the unsociable old and rich but with no sense that the old may be redeemed by a recognition of their faults and no revolutionary desire to see the world formed on a new basis” that provides the level playing field of accessibility to equal opportunity regardless of race or origins.

We think that this is a powerful observation on many levels as our reference to an Australian Criminology Institute study in the previous chapter, which concluded that there is a correlation between drug-related crime and factors such as poor social support systems, early contact with government services, difficulty in school and membership in deviant peer groups, and the lack of access to economic support systems, means that we should indeed focus on tackling “the deep-rooted social problems” presented by the critics of the King’s College London research.

Even though far reaching social change is not likely to happen overnight, or for that matter anytime soon, we can take an all important first step forward within the confines of our own homes, and how we act as parents.

In essence and in a very real and meaningful way, we as parents can take ownership of our responsibilities in terms of how we interact with, and raise our young.

This recognition and acceptance of our responsibilities is a fact that even the courts now take into account with juvenile offenders and the issuance of parental orders.

In England for example, and more specifically Wales where according to a 2008 children’s charity NCH report “1 in 10 young people have been affected by gun or knife crime,” a Parenting Order as it is called is made against the parent or parents of a child which has been given an “Anti-Social Behavior Order, has been convicted of an offence, or the parent has been convicted of an offence under section 443 or 444” of the country’s 1996 Education Act.

The Act, which grants local authorities with “more responsibilities with regards to strategies for reducing crime and disorder,” and in particularly as it relates to ” racially aggravated offences,” is an interesting concept relative to its intention.  Specifically, the parent is held accountable for keeping their children in check so as to prevent similar or repeat behavior resulting in further run ins with law enforcement.

Usually put into force for a period of 12 months, there are of course restrictions in that the order must not interfere with either the parents’ or child’s religious beliefs, or in any way conflicts with times in which the parent or parents are normally at work or when the child is attending school.

This being said the data regarding the effectiveness of Parenting Orders in the UK requires further research relative to overall effectiveness, however establishing some degree of accountability is a good first step  But would it be effective in the West and in particular in the United States?

A May 27th, 1996 article “Should parents be responsible for the crimes of their children?” related the story of a Detroit couple who were found guilty of “failing to control their 16-year-old son,” who while under the influence of marijuana committed several burglaries.

The couple, Susan and Anthony Provenzino, were each ordered to pay a fine of $1,000 plus court costs for their purported failure to in effect properly parent their son, which violated a city ordinance that “parents must exercise reasonable control over children under 18.”

What is interesting is what one would define as being reasonable control, especially in an era where corporal punishment can land the parent in the equivalent of legal hot water pretty quickly.

While we are not going to debate the merits or drawbacks of corporal punishment within the confines of this book, nor for that matter any specific parenting technique, it is nonetheless a very interesting dilemma.  A dilemma which had perhaps an even greater sense of urgency in 1996 based on FBI statistics which indicated that between 1984 and 1994 juvenile arrests for violent crime had increased by a whopping 75%.

According to the article, there were at the time at least 10 states including California, Oregon, Illinois and Virginia that had similar community ordinances to the one in Michigan.

The far reaching issue with such ordinances according to Keith W. Waters, who in 1996 was the president of the National Bar Association, is that they go against the grain of “American law,” which has never in its history held one person or persons accountable for the misdeeds of another.  Or as Waters put it, “a criminal act is the conscious choice of a wrongdoer and not of another person, parent or friend.”

Even though Waters believes that there is no basis within the criminal justice system to hold a parent accountable for the actions of a child, he does not preclude culpability within the framework of the civil courts.  One example according to Waters is “if a child throws a brick at a car, parents should be held responsible for the monetary damages.”

Many in law enforcement seem to have shared Waters’ general sentiments regarding criminal liability.

Ira Harris, who in 1996 was the executive director of the National Organization of Black Law Enforcement Executives “NOBLE,” whose membership today is comprised of 6,000 police chiefs and law enforcement officers at the federal, state and local levels expressed the opinion that there should not be a “:mandatory law across the board” holding parents responsible for their children’s crimes.  His reasoning was that many parents might be “innocently caught up” should such a law be passed.

He did however indicate that as perhaps an alternative, a law be established that would review parental responsibility on a case-by-case basis to determine if there is in fact overwhelming evidence of culpability.  That said Harris as well as the NOBLE organization as a whole, advocates to this day a collaborative and conciliatory partnering between schools and parents as reflected first in their July 28th, 1999 resolutions, and the subsequent 25th Annual Conference resolution that was adopted on August 1st, 2001.

Titled “Resolution To Support The Fight Crime By Investing In Kids Initiative,” the resolution referred to what it terms as both “rigorous scientific research and years of experience on the front lines,” which indicated a significant drop in crime when families have “access to quality after-school programs, school readiness child programs, help for troubled kids, and abuse and neglect prevention programs.”  This would seem to mutually support the research findings of the Australian Institute of Criminology which suggest that “drug use” like alcohol have what can be referred to as “common origins” relating to factors such as a “lack of access to economic support systems, poor social support systems, early contact with government services, difficulty in school, and membership in deviant peer groups.”

If this is indeed the case, then the NOBLE Resolution is at least heading in the right direction in that the proposed programs, which the organization believes will more than pay for themselves through a reduction in crime and related punishment costs, a reduction in welfare and remedial education costs, and increased revenue generated by productive workers, transforms the problems of juvenile crime through the proactive involvement of key stakeholders.

By fully funding the programs referenced above through the Fight Crime: Invest in Kids School and Youth Violence Prevention Plan, NOBLE believes the troubled kids will ultimately get back on track and that the level of overall parenting will be dramatically improved.

This is a vastly different perspective than the one associated with the crime gene theories in which we are all ultimately reduced to a somewhat neutered and ineffective role of “the devil (or genes) made me do it” course of inaction.

In short, and by proactively taking the bull by the proverbial horns in terms of the programs highlighted in the NOBLE Resolution, we once again refer you to a point we made earlier in this chapter that “crime is a cultural concept defined differently around the world, and is therefore not a biological concept.”  Therefore, and based on the concept of behavioral determinism, which contends that “actions are reflex reactions developed in us by environmental conditioning (re the nurture side of the nurture versus nature debate), while we has parents might not be held responsible for crimes committed by our children, we can certainly be held accountable for our involvement (or lack of involvement) in the very programs that have been proven to reduce youth-related crimes.

Certainly Burrhus Frederic Skinner, (who along with the somewhat controversial John B. Watson developed the view of behavioral determinism) assertion that “positive reinforcement is more effective at changing and establishing behavior than punishment due to the fact that the “main thing people learn from being punished is how to avoid punishment” would corroborate the NOBLE position.

Like the Broken Windows theory championed by James Q. Wilson and George S. Kelling, which was covered earlier in this book, fixing problems proactively when they are small (like children) “petty crime and low-level anti-social behavior will be deterred,” while “major crime will, as a result , be prevented.”

However, according to the April 7th, 2010 article “After Foster Care, Kids in Dire Straits,” when the State cuts loose foster kids when they hit the age of majority (usually 18), the abruptness by which this relationship is severed takes a significant toll on their success in the adult world.

Under the banner “College is a Rarity and Crime is Common”, writer Harry Kimball points to a study by The University of Chicago which found that by age 24, “just 6% of former foster kids have a college degree of any kind,” and that more than “two-thirds of women have children,” while close to 60% of all men have been convicted of a crime.

From a “people who live in glass houses shouldn’t throw stones” perspective States, many of which are contemplating the viability of parental accountability laws (in an October 29th, 2002 essay titled Parental Responsibility, a Deterrent to Juvenile Crime, at least 36 states had established parental responsibility ordinances as compared to the 10 States previously referenced in the May 1996 article), are themselves found wanting in raising and preparing the children under their charge through foster care.

According to Mark Courtney from Partners for Our Children, the children in foster care “are our children, the children of society, of the state . . . We have no business taking them into care and then keeping them until they’re in the transition to adulthood, unless we’re going to try and do a good job.”

Or as one non-profit leader put it, “We go from you’re in foster care, where you may handle $10 per month to you’re responsible for everything.”  As a society, “we need to offer something for these young people” other than “Here’s Option A: Fall off the cliff.”

Viewing the issue of parenting and juvenile crime through the lens of law enforcement, and in particular former deputy Sherriff Gregory Howard Williams’ book “The Law and Politics of Police Discretion,” the example of citizen-invoked law enforcement is interesting.  In those circumstances in which the police are engaged through a citizen-invoked action, the patrolman has the least discretion except when the suspects are juveniles.  In the latter case, the discretion afforded the officer is substantial and can be affected by general departmental policies and organization.

The key point here is that even though police can be given a fairly wide range of discretionary power in terms of responding to juvenile crime, it makes more sense that a concise and proactive plan focused on better parenting and where beneficial school and related social services support is a much better option.

Or to put it another way, crime prevention begins in the home, and potential issues are best dealt with at their point of origin when children are open to receiving adult direction versus when they have already become hardened and cynical through abuse and neglect.

About this Chapter’s featured picture:

Imagine what it would be like to be locked inside a closet 2 by 2 feet wide, your body wrapped in a wire fence and bound by chains like an animal for hours—even days—at a time. You aren’t given any food. You’re 6 years old, and your parents have done this to you.

It’s the heinous child abuse case The Oprah Show first told in 2000. Back then, the show couldn’t say his name or show his face. Now, that little boy, Clayton, is 19 years old and coming forward in hopes that his story will help save another child from abuse.

Read more: http://www.oprah.com/oprahshow/Claytons-Survival-Story#ixzz1WQocXve6

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Chapter 4 – Drugs is a Dirty Business

Note: The following is part of the series of full chapter excerpts from my latest book, a collaborative effort with television’s Cop Doc, Dr. Richard Weinblatt, Tasers, Abortions and Parenting: Behind the Curtain of Policing America.  Click on the title to obtain your copy of the complete book today.

“But uh, I must say “no” to you — and I’ll give you my reasons. It’s true, I have a lot of friends in politics, but they wouldn’t be friendly very long if they knew my business was drugs instead of gambling, which they rule that as a — harmless vice. But drugs is a dirty business.”

Vito Corleone to Sollozzo in The Godfather Part 1

The Godfather is of course a classic movie for many, many reasons from memorable lines like “going to the mattresses,” to “leave the gun – take the cannoli,” it is richly endowed with the very essence of American culture that at once is drawn yet repelled by moral contradictions of decent society and the baser human instincts.

Nowhere is this contradictory dilemma better reflected than in the latter part of the movie when the Don, looking to put an end to a war that claimed the life of his eldest son Sonny, stood before the heads of the New York Families to explain his reasons for turning down the “accommodation” that led to the bloodshed in the first place.

“When — when did I ever refuse an accommodation? All of you know me here — when did I ever refuse? — except one time. And why? Because — I believe this drug business — is gonna destroy us in the years to come. I mean, it’s not like gambling or liquor — even women — which is something that most people want nowadays, and is ah forbidden to them by the pezzonovante of the Church. Even the police departments that’ve helped us in the past with gambling and other things are gonna refuse to help us when it comes to narcotics. And I believed that — then — and I believe that now.”

Here is a man who has ruthlessly murdered adversaries, and willfully broken laws as he built his family’s power and wealth, hitting a moral wall when it came to selling drugs.  It is this very duplicity of character that like the requirement for family members to be clean cut and respectable in outward appearance, is at once perplexing yet applauded.

In a hate the sin, love the sinner sort of way, this same duplicity is often times reflected in our current, real life views of drugs and drug users.

How many of us for example would fervently read, with great interest mind you, about another Robert Downey Jr. relapse, or mourn the passing of young stars such as a Heath Ledger or Brittany Murphy with a morbid nostalgia.  Or in the case of Corey Haim, both a gallows humor interest as viewed through the lens of a TV reality show before his death, to a what a shame lamentation at his passing.

We only point this out not as a means of passing judgment, although some may question the voyeuristic tendencies that compel us to watch lives spiraling out of control with such focused interest, but instead to highlight the seemingly conflicted view we take of both drugs and those that use them.  After all, aren’t shows such as A&E’s Intervention amongst the most popular on television?

Even the passing of Michael Jackson, whose accomplishments and the unbridled admiration of his fans transferred the responsibility for his use of a lethal combination of propofol, lorazepam and midazolam, to his personal physician Dr. Conrad Murray.

Murray it should be noted was charged by Los Angeles prosecutors with involuntary manslaughter on February 8th, 2010, and is currently awaiting trial.  The good doctor however is claiming that MJ did himself in, arguing that “the pop icon gave himself the fatal dose of Propofol, a hospital-grade anesthesia authorities say killed him.”

While we will confine the legal debate surrounding exculpable actions and provocation to the previous chapter, it would be safe to say that this story will likely bring down the Internet when the trial starts to perhaps the same extent that it did when Jackson’s death was first disclosed to the world.

The key point here is that there is a paradoxical apathy that causes us to either vacillate between harshly executed legal indifference and, a palliative patience that creates a perpetual cycle of empathetic care.

However, from a crime perspective, U.S. Bureau of Justice statistics provides us with an interesting lens through which to view drug addiction in America.  According to bureau data from 2002 approximately one quarter of convicted property and drug offenders in local jails committed their crimes to get money for drugs.

Moving ahead to 2004, 17% of U.S. State prisoners and 18% of Federal inmates indicated that they committed their crimes to obtain money for drugs, a trend that has remained relatively stable since the previous report in 1997.

Of course some would argue that even those substances which are considered legal under the law such as alcohol are equally responsible in terms of influencing the commission of a crime.

In the case of alcohol for example, at least 75% of the U.S. adult population are drinkers, with approximately 6% of that total being alcoholics.  What is both surprising and worth noting is that reports indicate that 73% of all felonies are alcohol-related.

An even more telling statistic can be found in reports which indicate that 67% of all child-beating cases, 41% of forcible rapes, 80% of wife-battering, 72% of stabbings, and 83% of homicides occur when either the attacker or the victim, or for that matter both had been under the influence of alcohol.

Given the nature and frequency of the crimes that are committed where alcohol is involved instead of drugs, one has to wonder if focusing law enforcement’s attention on policing the distribution and use of illegal drugs represents the best use of time and resources.  Especially given the present administration’s view that drug use is a “health problem, rather than a criminal problem.”

Regardless of whether we are talking about a legal or illegal substance, or the difference between drug uses being a health problem versus a criminal problem, the consequences of use should be the primary focus of both legislators as well as law enforcement.

Even though studies on drug related crime, which has been broken down into three distinguishable types; Use-Related, Economic-Related and System-Related crime, seem to indicate that outside of the realms of the third classification (System-Related crime), the majority of infractions are usually of a non-violent nature, it is nonetheless a significant issue.

Compare these statistics with the crime data associated with alcohol-related crime and one could easily wonder if making the use of alcohol illegal might significantly reduce the high number of violent crimes to a level that is commensurate with those of the illegal drug trade.

But wait a minute . . . haven’t we been down this road before?

Certainly another venerable movie and before that, television series by the name of The Untouchables will stir memories of prohibition, or what was also known as “The Noble Experiment.”

Prohibition’s origins go back as far as 1789, well before the passing of the National Prohibition or Volstead Act on October 28th, 1919, and can be linked to the early days of what was known as the temperance movement.

According to history, as the American Revolution approached, the resulting economic change and urbanization was accompanied by poverty which saw a relaxation of ordinances or localized law that led to a dramatic increase in alcohol-related problems.

Adding to the societal concerns regarding the impact of increased alcohol consumption were findings by the medical profession, and in particular Dr. Benjamin Rush, who linked a decline in both physical and psychological health with alcohol use.

Fueled by this revelation from mainstream medicine, a community in Connecticut formed a temperance association in 1789 with the sole focus of banning the production of whiskey.  Other states such as Virginia in 1800, and New York in 1808 followed suit.

Despite the early promise of the temperance movement, political in-fighting muted the movement’s overall effectiveness.  However, certain segments of the movement and their leaders persevered ultimately spinning off other movements such as the Anti-Saloon League, which became the driving force behind the National Prohibition Act.

What is interesting about the act is that while it outlawed the sale of alcohol, “it did little to enforce the law.”  In fact by 1925, there were reportedly an estimated 30,000 to 100,000 speakeasies in New York City alone.

What is also worth noting is that while prohibition was successful in “reducing” alcohol consumption, many believed that it tended to destroy society by other means.

In his May 24th, 2010 article “The Demon Drink,” David Von Drehle made reference to Daniel Okrent’s book Last Call: The Rise and Fall of Prohibition (Scribner; 468 pages), and in particular the author’s observation that Prohibition proved “that if alcohol demoralized American society, outlawing alcohol was even worse.”

“The 18th Amendment,” he continued “made criminals out of casual drinkers, turned clergymen into cheats, encouraged doctors to practice deception and sowed the seeds of the Mob.”

It would not be unreasonable to wonder if Gus Vollmer, whose police career spanned to include the era of prohibition, might have been motivated by the principles expressed by Okrent when he came out against police involvement with the problem of drug addiction.

As you will recall from an earlier chapter, Vollmer believed that the “enforcement of moralistic vice laws” would lead to police corruption and in the process “engender disrespect for both the law and the agents of law enforcement.”  These are similar concerns relative to a somewhat different, present day debate regarding Arizona’s controversial immigration law, the most controversial parts of which were blocked by Federal District Court Judge Susan Bolton.

The most contentious sections of the law, which prior to the injunction led one Phoenix police officer to make the comment that he felt “like a Nazi,” centered on the requirement for officers to check a person’s immigration status while enforcing other laws and, demanding that immigrants prove that they were “authorized to be in the country or risk state charges.

The resulting damage that such a requirement would have relative to relations between Arizona’s various police departments and the public it serves would have the kind of far reaching negative consequences Vollmer anticipated from law enforcement’s involvement with drug addiction.  It was for this reason that he likely advocated the establishment of a federal distribution network for habit forming drugs.

The real questions that remain unanswered in terms of Vollmer’s proposal regarding illegal drugs, and the ultimate repeal of prohibition is simply this . . . what are the consequences as they relate to societal interests from the standpoint of crime, moral sensibilities and economic impact?

According to the Von Drehle article, while prohibition worked from the standpoint of limiting consumption it was an unmitigated bust “as a means to a better society.”

The reasoning behind this perspective is once again based on Okrent’s observation that prohibition “encouraged criminality and institutionalized hypocrisy.”

From a purely financial point of view, Okrent pointed to the fact that the act “deprived the government of revenue, stripped the gears of the political system and imposed profound limitations on individual rights.”

If there is anything we can learn from prohibition relative to the war on drugs, it is the fact that the complexity of interconnecting consequences means that there are no simple answers regardless of accessibility to either alcohol or drugs.

For example, when the 18th Amendment was eventually, and some would suggest predictably, repealed on December 5th, 1933 the new legislation instantly created 500,000 new jobs as brewers and distillers such as Allied Industries called workers back into fully operational plants.  The employment boon extended to “every line of business and commerce,” in the process fueling a new economic boom that rippled throughout all levels of society.

At that point in time, it would be difficult to point to the previously referenced statistics regarding the link between alcohol consumption and violent crime and not be viewed as the pessimistic naysayer.  This is especially true when one considers the research findings of the Australian Institute of Criminology which suggest that “drug use” like alcohol have what can be referred to as “common origins.”  Citing factors such as a “lack of access to economic support systems,” as well as “poor social support systems,” which are usually attributed to a impoverished state means that job creation and a roaring economy would seem to be the perfect elixir to both alcohol and drug-related crime, even with the ready accessibility to alcohol as a result of the18th Amendment’s repeal.

This means that the seeming cross purposes of enforcement versus overall societal impact creates a near untenable situation for the police officer on the street, as the line between access and offense can become somewhat blurred.

Take drunk driving for example.  There are very few people who would minimalize the real and often tragic consequences of impaired driving.  However, an even smaller percentage of the population would support a ban on alcohol as the solution to the problem.  And it is this very balance along the lines of not throwing out the baby with the bathwater analogy that seems to elude the majority of myopically challenged legislators when it comes to both understanding and passing new laws.

Perhaps part of the problem as proposed by Von Drehle in his article The Demon Drink is that Americans disdain half measures, usually following an all or nothing edict as the country did with the passing of the 18th Amendment.  But was alcohol the culprit behind rising crime as proposed by the temperance movement?

If as suggested by Australian research that in conjunction with a number of other factors such as poor social support systems, early contact with government services, difficulty in school and membership in deviant peer groups, there is a correlation between the lack of access to economic support systems, then one might assume that the Great Depression and not an accessibility to legal booze would contribute to a spike in crime rates.

However, and in yet another apparent contradiction while not reporting an increase, our research indicated that the crime rate “did not decrease” either during the depression.  In short it appears that there was no discernible increase in crime despite a 23.6% national unemployment rate delta in 1932.

This absence in the correlation between tough economic times and an increase in crime is a trend that was supported by recent FBI nationwide statistics from 2008 that reported “a surprising drop in crime last year, with homicide rates in some major cities plunging to levels not seen in four decades, despite a deep and prolonged recession.”  A period it is worth noting in which there was a reasonable, even significant accessibility to both alcohol and drugs.

Despite the above findings, it is still a generally accepted believed that high unemployment resulting from a poor economy does in fact contribute to an increase in social problems such as crime.  The reasoning behind this position is the fact that if people do not have the same level of disposable income as they did when they were employed, the likelihood that “crime levels will increase within the economy,” is high.

A 1979 study by Dr. M. Brenner who investigated the “Influence of the Social Environment on Psychology,” would seem to support the latter position.  Brenner found that for every 10% increase in unemployment numbers there was a corresponding 1.2% increase in total mortality, a 1.7% increase in cardiovascular disease, 1.3% more cirrhosis cases, 1.7% more suicides, 4.0% more arrests, and 0.8% more assaults reported to police.

An April 2001 article in the Journal of Law and Economics titled “Identifying the Effect of Unemployment on Crime” by Steven Raphael and Rudolf Winter-Ember concluded that a “substantial portion of the decline in property crime rates during the 1990s is attributable to the decline in the unemployment rate.”

Regardless of what side of the data you find yourself relative to your view on the correlation between the economy, unemployment and a rise (or decrease) in crime rates, what is society’s perception as to the degree of influence that accessibility to drugs and alcohol have on criminal activity?  Even more important a consideration is how everyday citizens view police intervention in these supposed areas of personal choice?

As is the case with abortion in the previous chapter, are drugs and alcohol abuse more of a social issue versus being a law enforcement imperative in the truest sense of the word?

For example, high unemployment can encourage xenophobia (which is the uncontrollable fear of foreigners), and protectionism.  On a side note we could not help but wonder to what degree the economic downturn in recent years may have contributed to the creation and popular support of the Arizona immigration law, and the corresponding impact on law enforcement that we have already discussed.

Conversely what about our continuing romanticism with Depression-Era public enemies like the bootlegging Al Capone, or Bonnie and Clyde and John Dillinger, whose bank robbing escapades were viewed as being more in line with a Robin Hood type of heroism versus being a criminal affront to society as a whole?

The troubling questions this raises is if policing America is more of an interim and at times unpopular reaction to greater and more pressing social issues or problems in which economic conditions stir greater demands for law enforcement intervention versus the unlawful use of controlled substances?  In short, is policing in a democratic society based primarily on a symptomatic response to acute and somewhat competing sensibilities, thus reducing law enforcement to an at times unnerving and perhaps even unwanted role of an unwelcome interloper?

The why are you stopping me to issue a ticket for speeding when there are real criminals committing real crimes in the world mindset?

In the case of drugs, why not focus on the foreigners taking our jobs or depleting our social services versus a generally harmless and needed escape from reality?

And if this is indeed true, at least to a certain extent, what impact does our view on drugs have on law enforcement’s ability to effectively and safely police America?

The lines between right and wrong, legal and illegal become even more blurred when you consider a 2009 Centers for Disease Control and Prevention study shows that prescription drug abuse amongst teens is “on the rise,” with an estimated 20% indicating that they “have taken a prescription drug without a doctor’s prescription.”

Besides the fact that prescription drugs are often easier to get, and that there is a persistent (false) belief that they are safer and less addictive than regular “street drugs,” a major problem from a law enforcement standpoint is the belief on the part of abusers that “they’re not doing anything illegal because these drugs are prescribed by doctors.”

As a result prescription drug abuse and the resulting police intervention, which threatens to move the drug war from the dark recesses of the back alley to America’s living rooms, is bound to be met with the same level of societal ambivalence, resistance and even hostility associated with controlling alcohol consumption during prohibition.

A task made even more daunting when you take into account that parents and adults in general are themselves over-medicated.

Add into the equation the highly publicized misdeeds of pharmaceutical a company such as Johnson & Johnson and Astra Zeneca, who have recently run afoul of the law for illegally “pushing” off-label drugs, and it, is easy to conclude that police are in what is potentially an untenable position that is tantamount to be caught between an irresistible force and immovable object.

So if police involvement in drug enforcement today is somewhat similar to the prohibition era control of alcohol, are there meaningful lessons that can be learned and applied to avoid the pitfalls associated with societal mores and legal edicts that are at cross purposes?

As a first step towards understanding what is undoubtedly a complicated scenario, let’s start by understanding laws and police practices from a general perspective.

In his book titled “The Law and Politics of Police Discretion,” Gregory Howard Williams, a deputy sheriff in Muncie, Indiana for more than 20 years, expressed his opinion that “in addition to determining who should have input into the rule-making process, it is necessary to determine which laws are appropriate for rule making.”

This is an interesting observation as it goes to the heart of determining what should or should not be considered illegal, including police response.  In terms of a definitive answer, Williams believes that the laws that are “most appropriate” for the rule-making process are those that “have the greatest potential for abuse.”

Referencing Professor James Q. Wilson’s model, which the author reports classifies “police response to law violations,” there are two primary functions performed by the police which are; law enforcement situations that arise “when there is a clear violation of the law,” in which only the assessment of guilt needs to be determined and, order maintenance situations when there is both a “violation of the law” and a need to “resolve dispute, interpret the law, determine standards of proper conduct, and assign blame.”

What is interesting is that law enforcement according to Williams can be “invoked by either the police or citizens,” fewer than four different scenarios including; police-invoked law enforcement, citizen-invoked law enforcement, police-invoked order maintenance, and citizen-invoked order maintenance.

Professor Wilson, who is an American academic political scientist and an authority on public administration, as well as senior fellow at the Clough Center for the Study of Constitutional Democracy at Boston College, observed the following relative to both police-invoked and citizen-invoked actions:

“in Cases I [police-invoked law enforcement] and IV [citizen-invoked order maintenance] the patrolman has great discretion, but in the former instance it can be brought under department control and in the latter it cannot.

In Case II [citizen-invoked law enforcement] the patrolman has the least discretion except when the suspects are juveniles and then the discretion is substantial and can be affected by general departmental policies and organization.

Case III [police-invoked order maintenance] is intermediate in both the degree of discretion and the possibility of department control.”

Even though Williams generally finds useful what he referred to as Wilson’s “typology of the discretionary situations faced by officers,” he nonetheless questions the breadth of its applicability in real-world situations.

In this regard, Williams assumes the position that police action which is initiated by a citizen actually affords the responding officers with little if any discretionary powers, due to what he called “active citizen involvement.”  Williams stressed the point that this is especially true in “citizen-invoked law enforcement situations, the majority of which tend to be felonies.”

Using both the Wilson model and Williams’ adjunct commentary as a guideline, what practical impact does this have in terms of how police can deal with drugs and drug-related crimes?

To start, let’s revisit what we had referred to earlier in this chapter as being the “three types of crimes associated with drugs.”

As you will recall, Use-Related crime is defined as “crimes that result from or involve individuals who ingest drugs, and who commit crimes as a result of the effect the drug has on their thought processes and behavior.”  We would of course extend this definition beyond drug use alone to include alcohol related infractions such as drunk driving or spousal abuse.

Let’s consider a situation such as impaired driving.  Given the significant public outcry over the countless and unnecessary deaths associated with drivers getting behind the wheel after having one too many, police have taken a proactive role through frequent media campaigns and setting-up random roadside checks.  In essence, and in what can be classified as police-invoked order maintenance, with the public’s blessing law enforcement is actively seeking out offenders by pulling over cars in which the majority of the people driving are doing so both responsibly and legally.

Now let’s examine prescription drug abuse amongst teens.  If in fact the 2009 CDCP survey is accurate, and 20% of all teens have taken a prescription drug without having a doctor’s prescription, this is a very serious problem.  Against this backdrop, how would parents respond to random drug tests of all students, or locker inspections at school?

What about routine home visits by police?  Despite increases in unintended prescription drug related crimes such as driving under the influence or sexual assault, a police-invoked order maintenance approach is unlikely to be met with the same level of enthusiasm as the roadside checks associated with reducing the number of drunk drivers on the road.

In either situation the risks and potential consequences are both significant and even deadly, yet society’s view appears to be the polar opposite relative to the role that police should play in terms of enforcing the law.  What is ironic is that the legal use of alcohol leads to a more proactive police involvement in our daily lives, versus the illegal use of prescription drugs.

It is this very disconnect in which two equally harmful crimes are both viewed and subsequently treated differently that is at the heart of the drug (and alcohol) issue relative to Use-Related crimes.  What is interesting is that this type of crime, like the majority of citizens who frequented the speakeasies during the days of prohibition, involve either directly or indirectly the greatest percentage of the overall population.

It would therefore be safe to conclude that in and of itself, alcohol consumption (which is legal), and prescription drug use (which is illegal), only concern the general public when it crosses the threshold of the user’s personal realm and invades society in the form of a detrimental act.  And it is only when prescription drug or alcohol abuse toxically and injuriously intersects with the community that police action is expected.  If the consequences of alcohol or drug use remained confined to the users own world or home, then it is unlikely that the public would pay much heed to questions of legality and police intervention.

It is usually when alcohol or drug abuse does manifest itself in an outward criminal act associated with Economic-Related crime, which is defined as being those crimes in which “an individual commits a crime” such as theft and prostitution “to fund their drug habit” that either police-invoked or citizen-invoked law enforcement practices occur and are in fact expected.

An Economic-Related crime can therefore be considered the point at which the line between personal proclivities and injurious conduct is crossed.  At this stage, it is no longer a matter of choice re if you choose to take illegal drugs or have several drinks before noon, that’s fine as long as it doesn’t conflict with my interests.  It is when these choices extend “outside” and have a negative impact on the community, that we demand that the full weight of the law be brought down to bear on the offenders.

However, there is also an ever present sentiment that users be viewed as having an illness that requires treatment versus punishment.  The effectiveness of such an approach after police intervention has received mixed reviews especially when you consider the recent headlines surrounding Lindsay Lohan or a Robert Downey Junior.

In the latter instance Downey had to be incarcerated before he made any real progress in kicking his addictions.

This leads to a question, is the separation of the crime from the individual a viable response and, does it lead to a long-term resolution?

The third and final type of crime associated with drugs is System-Related crime.  Defined as being those “crimes that result from the structure of the drug system, which include the production, manufacture, transportation, and sale of drugs,” as well as “violence related to the production or sale of drugs, such as a turf war.”

It is safe to say that this third classification of drug-related crime is one that involves a relatively small percentage of the population, in which daily interaction with the general populace is virtually non-existent.

In the context of this out of sight, out of mind societal perspective, it perhaps presents the least concern for the regular citizen.  Ironically, it also presents the greatest risk to police officers who operate within the closed world of organized or semi-organized crime.  As a result, police practices in terms of intervention are usually limited to police-invoked law enforcement and order maintenance.

The only time that this area of law enforcement focus crosses the collective consciousness of the public’s radar, is when there is a fatality – often times a police officer dying in the line of duty – or a major drug bust.  Outside of these acute events, it is probably the least rewarding area of crime prevention and enforcement for the brave men and women who toil in relative obscurity to effect control over the distribution of illegal drugs, the mere consumption of which is met with community ambivalence.

The data would tend to support the apathy position relative to both drugs and even alcohol given that even with the crackdown on impaired driving, 40% of all traffic deaths in the US are alcohol-related.  In fact the State of Nebraska estimates that 1 in every 60 drivers on the road at any given time have consumed alcohol.

This has once again caused some in the US to consider the possible restriction of access to alcohol (did we learn anything from prohibition?), while countries such as the United Kingdom and Australia who have implemented a coordinated Random Breath Test program have seen alcohol-related driving deaths plummet to a much lower level than those in the U.S.

To reiterate our earlier stated position, when it comes to policing controlled substances, it is as much of a general society issue as it is a law enforcement issue.

Given the fluidity of society’s views on both the enforcement and related punishment of drug and alcohol offenders, this will likely continue to be a “moving target” issue in which the police will have to maintain a high level of sensible adaptability.

Click to listen to May 21st, 2011 radio broadcast

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