Category Archives: Crime and corrections

A Different Kind of Police-Kill-Unarmed-Black-Youth Story

Brown and Cobb

Paterson Brown Jr. and David L. Cobb. Photo credit: Richmond Times-Dispatch

by James A. Bacon

Chesterfield County has its own cop-shooting-and-killing-an-unarmed-black-youth story, but it has generated little controversy — presumably because the police officer was himself black, thus side-stepping the racist-white-cop narrative. It is instructive to read the account of court testimony in the policeman’s trial to get a sense of the ambiguous situations in which police find themselves forced to make life-and-death decisions.

Here are the basic facts based on the Richmond Times-Dispatch‘s coverage of the trial: David L. Cobb, an off-duty, 47-year-old Chesterfield police officer, was getting his girlfriend’s car washed at the Better Vision Detail & Car Spa on Midlothian Turnpike when 18-year-old Paterson Brown Jr. inexplicably hopped into the vehicle. Cobb confronted Brown, struggling to open the door as Brown tried to close it. Observing that the teenager was acting strangely and incoherently, apparently from drug use, Cobb announced that he was a police officer and warned him four times to stay still. At one point, Brown leaned back and said, “I don’t f— with cops” but he did not comply. When Brown moved his left hand across his waist, Cobb believed that he was reaching for a gun. He shot the youth in the pelvis, severing a vital artery and killing him. As it turned out the youth was unarmed.

The prosecutor argued that Brown’s act of reaching across the waist “does not give you the right to use deadly force.”

But David Baugh, a black attorney who has represented five other Richmond-area officers in use-of-force killings, countered that every officer (1) is responsible for stopping a crime when he or she sees it, and (2) fears for his or her life when approaching a vehicle.

“He doesn’t have a right to walk away,” Baugh said. “He took an oath. It’s his moral duty to stick his nose in it.” To convict Cobb, he told the jury, prosecutors “have to convince you there’s no reason to be scared.” Brown set the tone with his bizzare behavior, glaring at Cobb after the officer spotted him inside the car. “Is he reasonable to be fearful? Yes. [Officers] all know.”

Bacon’s bottom line: Police officers have every reason to fear that young men acting strangely and actively resisting direct commands might pull out a gun and shoot. Forty-five law enforcement personnel, two of them in Virginia, have been killed in the line of duty so far this year. Cobb had to make a split-second decision. He made the wrong decision. Indeed, Cobb was so remorseful that he broke down sobbing while testifying in court and the judge had to suspend proceedings for ten minutes while he composed himself. But Cobb did not create the situation. Brown did. And, while his death was tragic and out of proportion to anything he did wrong, he brought it upon himself.

After a two-decade decline, violent crime is on the upswing. Ironically, most of it is black-on-black crime — a perverse result of the “Ferguson effect” in which police dial back their interventions and the Black Lives Matter movement which has encouraged black youths to distrust police and resist arrest. To revive a phrase from the 1960s, I’m on the side of “law and order.” If I were on Cobb’s jury, I would not vote to convict. And, if the T-D‘s account is fair summary of the facts presented, I’ll bet his jury won’t either.

Civil Rights for Me, Not for Thee

Justice-free zone?

Justice-free zone?

A former University of Virginia law student filed a federal lawsuit yesterday alleging that the university, following guidelines issued by the federal Office of Civil Rights, violated his due process when finding him responsible for sexual misconduct with an intoxicated student and banned him from the university.

According to the suit, a retired judge serving as fact-finder in the U.Va proceeding found that the plaintiff, identified only as “John Doe,” did not have “effective consent” when he had sex in August 2013 with a fellow law student, “Jane Doe” on the grounds of her alcohol consumption. The judge, who called the decision “very close,” was required by the Office of Civil Rights to use the “preponderance of the evidence” standard of proof rather than the stronger “clear and convincing” standard.

John Doe was found responsible for the incident and sanctioned with a life-time ban and four months of counseling. He received his degree but has not yet been admitted to the bar and cannot practice law, reports the Richmond Times-Dispatch.

Bacon’s bottom line: Details from the news account, and presumably the lawsuit itself, are so meager that it is impossible for a reader to draw strong conclusions about the incident itself. We don’t know how drunk the woman was, how drunk the man was, or what communication may have transpired between the two. If the woman passed out and John Doe had sex with her, he should be charged with rape and, if convicted, sent to prison to serve a sentence between five years and life as called for in the Virginia penal code. If they had both been drinking heavily, engaged in sex and the woman later regretted the act, he shouldn’t suffer punishment at all.

Most likely, the circumstances were more ambiguous that those two examples. Regardless, it seems that the system of administrative justice imposed by the Office of Civil Rights likely led to a miscarriage of justice. If a real rape occurred, John Doe got off easy. If the incident was a case of mutually agreeable drunken sex, he shouldn’t be punished at all. Because the incident occurred in a university environment, the normal rules of criminal procedure were suspended in order to achieve a politically driven result dictated by Washington.


When Bubbas Go Bad

Photo credits: Roanoke Times

From top: David Copeland, Robert J. Kelley Jr., Michael Clark, James Todd Edwards, Wes Rosenbalm, and Paul Hurley. Photo credits: Roanoke Times

Once upon a time, Bristol Virginia Utilities in far Southwest Virginia was lauded as a spunky, small-town electricity and water utility that provided high-speed Internet services to an under-served population. Now, as the Roanoke Times describes it, the company’s “culture of corruption, entitlement and greed,” has been laid bare. So far, nine former utility executives, board members and contractors have pleaded guilty or been convicted of corruption charges. The Roanoke Times summarizes the stink:

The utility was rife with self-dealing, extortion, tax evasion and fraud. There were kickback and bid-rigging schemes, demands BVU’s major vendors underwrite fancy holiday parties (one cost more than $12,000) and provide executives with choice tickets to pro football and college basketball games, NASCAR races, horse races and other sporting events.

Court records depict one case in which some top BVU executives and board members took a weekend trip to Texas, where they relaxed in hotels, dined in restaurants, rode in limousines and watched the NFL’s Dallas Cowboys from luxury skybox seats at AT&T Stadium, all courtesy of a company awarded a $4.5 million contract from the agency.

Rank-and-file employees picked up at least $48,000 total in untaxed bonuses paid as gift cards and cash. Top executives received country club memberships valued at $70,000 , fully loaded GMC Yukons for personal use, and car allowances. Those extras weren’t taxed either.

Meanwhile, the utility’s customers got hit with water, sewer, electric and cable-TV rate increases in a region where the median household income is $33,600 and the poverty rate is 22 percent.

Stace Pomrenke, Bruce James Chilton, and G. Walter Bressler.

Stace Pomrenke, Bruce James Chilton, and G. Walter Bressler.

Caught in the net are Paul Hurley, former BVU board chair and mayor of Bristol; Bruce James Clifton, former board chair; Wes Rosenbaum, former CEO; and G. Walter Bressler, former general counsel.

There’s no point in lamenting greed and corruption — they are encoded in the human genome. The trick is building mechanisms into the system that hold accountable the people in power. I suppose we can say that the system worked at one level — the justice system is holding the BVU executives accountable. Ideally, BVU would have had systems to prevent such abuses from occurring in the first place.

Is it just me, or is corruption and abuse of power in Virginia getting more frequent and more audacious these days?


Rule by Edict Comes to Virginia

mcauliffeby James A. Bacon

A persuasive moral case can be made to restore the civil rights of former felons. Once a man has served his time and repaid his debt to society, he should be allowed to participate fully in that society.

As Governor Terry McAuliffe stated Friday in announcing his restoration of civil rights to 206,000 Virginians:

If we are going to build a stronger and more equal Virginia, we must break down barriers to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.

Former Governor Bob McDonnell thought much the same thing. In 2013, he proposed a series of bills meant to fast-track the restoration of voting rights for non-violent felons. The bill died in committee, but McDonnell recognized what governors like Tim Kaine had acknowledged before him: that the United States is a nation of laws and he did not have the authority to rewrite the law as he pleased.

Perhaps anticipating difficulty in convincing the Republican-dominated General Assembly to pass the law he wanted, McAuliffe has borrowed from the Barack Obama playbook — rewrite the law by executive decree.

Not surprisingly, his sweeping action is being negatively received. ” I am stunned at his broad and unprecedented view of executive power, which directly contradicts how past Governors have interpreted their clemency powers,” said House Speaker William J. Howell, “and I am stunned at his willingness to restore the rights of the most heinous criminals without batting an eye.” He continued:

There are significant constitutional and legal questions regarding the Governor’s authority to take such drastic action.  No Governor in the history of Virginia has accepted such a sweeping view of executive power.  A.E. Dick Howard notes in his commentaries that Governors have considered the “restoration of civil disabilities on an individual basis.”  The Supreme Court has acknowledged the Governor’s authority on the restoration of rights, but only in the context of requests made by individuals.  The Court does not appear to have ever contemplated the view taken by the Governor.  Most recently, in 2010, counsel to Governor Tim Kaine said ‘a blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers.’

We’re not talking about technicalities here. An important policy question is whether restoration should extend to all felons regardless of their crimes, such as murder, rape, child rape, and kidnapping. Any policy, suggested Howell, “should take into account the nature of the crimes committed, whether they have paid back their victims and the court system, and their willingness to serve as productive members of society.”

Another question is how to implement the law. Writing to the American Civil Liberties Union of Virginia in 2010, Mark Rubin, counselor to Kaine, warned of several practical problems that McAuliffe will be sure to encounter as he tries to implement his edict:

Neither the information about voting registration concerning whether a felon has completed his sentence are completely available in centralized state records as they are in other states you cited as models. For example, information about whether a felon has complied with court orders including the payment of restitution to the crime victim or whether the individual has successfully met the terms of probation or parole supervision is only available in local court records. Without having this information available in centralized data bases, a blanket restoration of rights for those who have completed their sentences would place an unprecedented burden on local registrars to determine whether a felon is actually qualified to register. It could also lead to significant confusion in the election process with disputes about an individual’s voting status. The risk of undermining the integrity of the election process is not one the Governor is willing to take as he leaves office.

Kaine said individual felons should be encouraged to petition to have their rights restored, and the law should be changed to see to it that lifelong voting disenfranchisement is not an automatic consequence of felony conviction. But the governor could not unilaterally change the law himself. “The Governor,” wrote Rubin, “will be glad to continue to work … to ultimately persuade the General Assembly that this distinction is one to erase.”

Remarkably, in his announcement Friday, McAuliffe provided no legal justification whatsoever for his action — not even a fig leaf of a justification — nor did he refer to any bills he failed to get bills through the legislature as justification for conducting an end run around the General Assembly. His action looks like a raw power grab times designed to infuriate Republicans and mobilize the African-American vote in November.

Bacon’s bottom line: I defended McAuliffe when legislators tried to pack the GoVirginia board with their own appointees, an unjustified legislative intrusion into executive authority. (See, “Here, Piggy, Piggy!”) Now it’s time to call McAuliffe on the reverse — an usurpation of legislative power. I’m not sure what happens from here. Presumably, lawsuits will be filed. Perhaps the General Assembly will take some official action. One way or the other, McAuliffe needs to be reigned in.

JMU’s War on Men

James Madison -- now rolling in his grave

James Madison — now rolling in his grave

“John Doe,” accused of sexually assaulting a classmate at James Madison University, has filed a lawsuit accusing the university administration of denying him due process. He had sex with “Jane Roe” on multiple occasions, then, after she spotted him with another woman, she charged that the first time they had sex had been non-consensual on the grounds that she had been incapacitated, i.e. drunk, at the time. After reviewing the evidence, a three-person panel cleared John Doe of sexual misconduct. But the administration initiated a second hearing culminating with his suspension from the university for five-and-a-half years. Now Judge Elizabeth Dillon with the federal district court of Western Virginia has ruled that his lawsuit can proceed. Read the account in the blog here.

My question is this: Has JMU’s administration embraced radical feminist ideology so tightly that it has tossed out all notions of due process in order to achieve a politically correct result? Or does JMU fear retaliation from the Obama administration if it shows insufficient resolve in combating the supposed “epidemic of rape” on its campus? My hunch is it’s a little bit of both. Meanwhile, no one dares address the real problem: a student culture of widespread drunken and promiscuous sex in which women conduct themselves with appallingly poor judgment and men with crass selfishness.


Failed Twice by the Criminal Justice System

Shaakira Ross, failed by the justice system... twice

Shaakira Ross, failed by the justice system… twice.

by James A. Bacon

The most basic and essential of all government services is to administer justice and protect the citizenry. If government can’t do that, it fails at the most profound level.

So, now we read about a murder trial in Petersburg in which a young felon was accused of gunning down a 19-year-old Governor’s School graduate, Shaakira Ross. The trial came to a halt because too few Petersburg residents subpoenaed as potential jurors showed up!

As the Richmond Times-Dispatch observes in his coverage of the incident, it is “extremely rare” for a criminal trial to be postponed for a lack of subpoenaed witnesses. In this particular instance, the government did its job — it issued 60 subpoenas for potential jurors. But only 24 arrived. Of those, 18 were excused under a statutory provision that exempts college students, the disabled and the elderly over 70. That left only six potential jurors. Normally, a trial requires a pool of at least 26 to 30 because some get dismissed during the selection process for biases or conflicts of interest.

“If this sort of thing continues to happen — jurors not showing up — it could be disruptive of the criminal justice system,” said Commonwealths’s Attorney T. Leslie Lindsey.

Hopefully, the incident was a fluke. But don’t be surprised if it’s not. Peoples’ notions of citizenship are changing. Even middle-class citizens regard jury duty as a hassle and try to get out of it. In Petersburg, with its large population of poor, many of whom live unstable lives, drift from residence to residence, and regard the justice system with suspicion, I would bet that the failure to respond to jury subpoenas is a chronic problem.

As an aside… The criminal justice system didn’t fail Ross just once, but twice. Her accused killer, Leon Thomas Archer, 21, had pleaded guilty in 2013 to three counts of burglary, two counts of larceny of a firearm, and one count of grand larceny. He was sentenced to 10 years in prison with eight years suspended on each of the counts, and allowed to serve the terms concurrently, for a total of only two years served. The man should not have been on the street.

Archer’s defense is that the killing was accidental. By his own admission, he was preparing to break into a home that evening on Fort Rice Street when he was startled by some music playing behind him. Allegedly, he turned around, locked eyes with Shaakira Ross, who was sitting in her car, and shot her. The police removed five .45-caliber bullets from her body.

Next time you denounce “mass incarceration” and call releasing more felons from jail or prison, please remember the gamble the justice system will be taking. The victims almost always are other African-Americans, in this case Shaakira Ross, a young woman described as a good student with a big smile and upbeat attitude who was planning to go to nursing school.

Curse Thee, Demon Smart Meter!

Photo credit: Pew Charitable Trust

Photo credit: Pew Charitable Trust

Smart meters could be a key contributor to America’s evolution to an energy-efficient future. The devices measure gas and electricity consumption, helping consumers reduce energy consumption, save money and reduce the CO2 emissions implicated in global warming. The widespread use of smart meters could enable power companies to offer incentives for consumers to shift their electricity consumption away from periods of peak demand, thus cutting costs for everyone.

But a backlash against smart meters is picking up steam. Some say the data they convey over wireless networks can be hacked by criminals to target homes. Utilities say the fears are overblown, but 15 states now allow consumers to opt out of smart meter installations. Pew Charitable Trusts’ Stateline has the story here.

Good intentions are no match for the stubbornness and perversity of mankind.