◼ One suspect in 2008 Cutten killing takes plea deal
One of two defendants accused of participating in a December 2008 home invasion robbery that left a Cutten man dead pleaded no contest Tuesday to voluntary manslaughter and related drug charges.
Jury selection for the trial of Jason Leon Belles, 31, and Jonathan Henry Watson, 30, was set to begin Monday but Belles pleaded Tuesday to reduced charges. He will be sentenced Aug. 21. The stipulated term of the plea deal was seven years and eight months in prison, according to court documents.
Belles' attorney William Bragg said that although they felt Belles had a good defense for the jury trial, Belles did not want to risk a life sentence.
”My client evaluated the risk involved in the case of taking it to trial and was not willing to risk the rest of his life on that,” Bragg said. “I could not guarantee my client that I could win the case. No attorney can.”
With good behavior, Belles may only have to serve 85 percent of his proposed sentence, or about six-and-a-half years, minus time already served, Bragg said.
Belles accepted the plea deal from Deputy District Attorney Max Cardoza that reduced a murder charge to voluntary manslaughter; a first-degree burglary charge to transporting more than an ounce of marijuana; and a first-degree attempted robbery charge to possessing marijuana for sale, according to court documents. A second attempted robbery charge was dismissed.....
Watson's jury trial is now scheduled to begin Aug. 5 with jury selection beginning Aug. 3, according to court documents. He is charged with murder, first-degree robbery, first-degree burglary and being a felon in possession of a firearm.
7.30.2009
7.28.2009
2nd Installment - isuse of the grand jury against law enforcement
LDF - Misuse of grand jury
This is the second installment of the Misuse of the grand jury against law enforcement article, continued from last month. In this installment, we cover the pre-trial investigation, use of outside experts, the applicable law, and the successful result of extensive pre-trial motions. BY WILLIAM R. RAPOPORT
Part 2 — Pretrial Investigation
Although legal challenges to the validity of the charges would be vigorously argued in pretrial defense motions, it was nonetheless necessary to simultaneously proceed with matters in preparation for trial. While there are many facets to the pretrial investigative activities undertaken in this case, the initial efforts focused on a critical review and evaluation of witness statements.
Subsequent efforts would involve an analytical incident reconstruction in order to contrast and/or reconcile witness statements with the available evidence.
One of the prosecutor’s assertions in alleging criminal negligence was that the Eureka PD SWAT team made a warrantless entry into Cheri Moore’s apartment in the absence of exigent circumstances. Offered in support of this assertion was the fact that the Vern’s furniture showroom, across the street from Moore’s apartment, was not completely evacuated by the police. Humboldt County District Attorney Paul Gallegos argued that this demonstrated that the officers did not truly consider Moore to be a threat.
In fact, Vern’s management was advised that all persons on their premises should remain on the opposite side of the building, away from 5th Street. In what may be described as an exercise in basic geometry and trigonometry, it was possible for the defense to conclusively demonstrate that Moore’s potential field of fire extended less than halfway into Vern’s showroom. Thus, the directive to remain on the east side of the building was both reasonable and sufficient for the safety of the persons on the premises.
A more critical issue was raised in terms of the ability of the SWAT patrol rifleman to have seen Moore’s hands from his rooftop vantage point. Both at the Coroner’s Inquest, and again at the grand jury, witnesses were shown the scene photographs taken by investigators shortly after the shooting of Moore. All the photos show the upper pane of the north window in the closed position. This was the window where Moore was standing when the patrol rifleman communicated the “hands free” signal.
The SWAT observer in the Mason’s building testified that although he was closer and was using binoculars, he never saw Moore’s hands free when he heard the signal broadcast.
Some members of the media fueled the speculation that a bogus “hands free” signal was given as a pretext to enter Moore’s apartment and use deadly force to end the standoff. Following the Coroner’s Inquest, the editors of the North Coast Journal raised the question, “Why didn’t the spotter with the best view of Moore see her hands?” While not directly accusing the patrol rifleman of lying, District Attorney Gallegos was more than pleased to leave the grand jury with the impression that one of the two tactical observers was being untruthful. In the event of a jury trial, this apparent breach of credibility would weigh heavily against the defense.
DA Gallegos made a cardinal error in failing to thoroughly investigate the statements and testimony given by the patrol rifleman, who reported that he saw Moore’s hands free when she reached with her right hand for the latch to close the window. Instead, Gallegos apparently chose to go with the testimony of the SWAT observer and to leave the glaring contradiction unresolved in the eyes of the jury. This investigative failure would be akin to ignoring an alibi offered by a suspect. Even a novice in criminal law would be expected to have the sense to evaluate the credibility of an alibi.
In February 2008, nearly two years after the incident, defense investigator Michael Schott, working with this author on behalf of SWAT team commander Lt. Tony Zanotti, requested and obtained images captured during the standoff by a Eureka Reporter newspaper photographer. Unlike all of the evidence photos, these images showed the upper north window to Moore’s apartment to be open.
This should have come as no surprise to the prosecution, since these and similar images had previously appeared on the front pages of the local newspapers. In addition, TV news reports had also featured video clips showing the same window to be open shortly before the shooting. A Eureka Reporter staff member advised that no one else, including members of the District Attorney’s Office, had ever requested these photos.
In the course of resolving the “hands free” paradox, the LDF defense began with the premise that both spotter officers were telling the truth. The next step would involve reconstruction of the incident with respect to the view each spotter had as the final moments leading up to the shooting unfolded.
In March 2008, the LDF defense team formulated a plan to obtain detailed measurements and photographs at the scene on or about April 14, the two-year anniversary of the incident. formulated a plan to obtain detailed measurements and photographs at the scene on or about April 14, the two-year anniversary of the incident. Charts and certified weather observations were obtained from the National Climatic Data Center for the time of the shooting on April 14, 2006.
Due to the 2008 leap year, it was determined that the nearest matching conditions in terms of sunrise, sunset, solar azimuth and elevation would occur at 12:33 p.m. on April 13, 2008. In particular, the angle of the sun would be a nearly exact match to that on the date of the incident. Using digital imaging techniques, it was possible to locate the exact station or position from which the news photo had been taken.
With current photos taken from the original camera station, further forensic imaging techniques enabled the scene investigators to position the windows of Moore’s former apartment nearly identical to the positions shown in the news photo, the exact position of the North Window at the time the “hands free” signal was given.
Beginning at about 12:33 p.m., photographs of the apartment windows were taken from the position of the SWAT observer on the third floor of the Mason’s building. Photos were also taken from the rooftop where the patrol rifleman had been stationed.
Through a process of uniformly scaling the photos and creating semi-transparent digital overlays, the defense was able to establish that at the time of the “hands free” signal, the SWAT observer’s view of Moore’s right hand was blocked by objects and paper signs which Moore had placed in the window. Conversely, the photos taken from the vantage point of the patrol spotter unequivocally demonstrated that he did, in fact, have a clear view of Moore’s hands when he uttered the “hands free” radio transmission.
Part 3 — Outside Experts
In the search to locate experts to assist in the defense of Zanotti and Chief Dave Douglas, this office contacted a few lawyers who, in turn, contacted a few people in local law enforcement, and came up with two names to be called to explore their expertise in SWAT. One of those experts was David W. Bliss of International Training Resources in Mountain View, California.
As it turned out, Bliss had been, for years, training the Eureka PD’s SWAT team and was very familiar with this particular operation.
The other name was Stuart A. Meyers of Operational Tactics, Inc., in Hagerstown, Maryland. Meyers turned out to be the beginning of a serendipitous sequence of events that proves that at times “it is better to be lucky than good.” I placed a cold call to Meyers and explained my function in representing Lieutenant Zanotti in a SWAT operation in Humboldt County, California. I was sure that he did not know anything about it, but I wanted to ask him some questions.
To my surprise, Meyers told me that he did, in fact, know about this operation and explained to me that in June 2007, he had received a call from the chief investigator for the Humboldt County District Attorney’s Office, who ran the facts by him at that time. Meyers had taken notes of that conversation and confirmed that he had told the investigator that he, Meyers, didn’t see any criminal liability.
The California Supreme Court, in Johnson v. Superior Court (1975) 15 Cal. 3rd 248, held that the prosecution has an affirmative duty to advise the grand jury of known exculpatory evidence. So compelling was this Supreme Court decision that following that decision, the California legislature enacted Penal Code §§939.7 and 939.71, which codified this obligation, recognizing that the grand jury is a tool of the prosecution, and if the prosecution doesn’t tell the grand jury about such exculpatory evidence, they would not know to ask to hear it and, therefore, one side of the story would be completely missing, i.e., the defense.
Meyers had an incredible resumé, including training of hundreds of law enforcement agencies in SWAT tactics across the United States, training of multiple U.S. armed forces units, and having been selected as a special consultant to train the SWAT/sniper teams for deployment operations at the 2002 Olympics in Salt Lake City, Utah.
After I reviewed the grand jury transcript, it was clear that nowhere was his name mentioned by the district attorney - an obvious violation of the holding in Johnson v. Superior Court and Penal Code §§ 939.7 and 939.71.
With this as a starting point, I discussed with both Sergeant William Nova (the present head of the SWAT operations for the Eureka Police Department, who was on light duty on the date of the incident) and Lieutenant Murl Harpham (the former founder of the Eureka Police Department SWAT unit), both with extensive tactical experience, whether or not they had had any contact from the chief investigator from the District Attorney’s Office regarding this case.
Both told me, separately, that they had been questioned by the investigator and, like Stuart Meyers, each had advised the investigator that this was a textbook operation and they did not see any criminal liability.
As it turned out, the District Attorney’s Office also failed to mention either of these witnesses during the grand jury proceedings. With declarations from Meyers, Sergeant Nova and Lieutenant Harpham - all reciting the same scenario - the “Johnson Motion” took full form. When faced with this motion, the district attorney and his chief investigator filed declarations in opposition to the motion. Meyers, Nova, and Harpham responded, using terms that characterized the opposition as misleading and false.
Over a period of several months after the grand jury indictment was returned (based on incomplete information), I also received dozens of calls from SWAT commanders throughout the United States expressing concern about this indictment. In order to find some outside, yet local, expertise, I contacted Ron McCarthy, a retired sergeant from the Los Angeles Sheriff’s Office, now doing private consulting in SWAT tactics. McCarthy is located in San Clemente, California, and has an extensive background in SWAT expertise and has trained and taught in California and in other states.
I was advised that I might want to also contact Deputy Chief Mike Hellman of the Los Angeles Sherriff’s Office regarding his input into the propriety of this SWAT operation. Deputy Chief Hellman, at his own expense, put in hundreds of hours reviewing transcripts and reports and advising me regarding the propriety of each step of the operation.
At this point, I was comfortable with the level of expertise that we had brought to bear on the tactical aspect of this SWAT operation, but now needed assistance on the legal aspects of the viability of this indictment.
With the authority of the Legal Defense Fund, I enlisted the aid of an outside research attorney - Renee Barenson of Redwood City, California - whose history included an assignment as clerk for the California Supreme Court for 6 ½ years. Barenson, on behalf of Lieutenant Zanotti, worked diligently with the assistance of attorney Greg Rael in Eureka (her counterpart in the “legal eagle” side of this case) to address the substantial legal deficiencies in the district attorney’s presentation of instructions and arguments to the grand jury, which helped me prepare for the Johnson Motion.
Part 4 — The Law that should have been givento the grand jury
Under California Penal Code §995(a)(B), an indictment shall be set aside by the Court, upon a defendant’s motion, if the defendant has been indicted without reasonable or probable cause. Greg Rael (on behalf of Chief Douglas) and Renee Barenson (who was specially hired by the PORAC Legal Defense Fund on behalf of Lieutenant Zanotti) set about to review with a fine tooth comb the Grand Jury Transcripts (1,687 pages) and the numerous exhibits, jury instructions, and argument by the district attorney. What they discovered can only be characterized as a “Target Rich Environment.” Their 73-page brief under Penal Code §995, and their 25-page rebuttal to the district attorney’s opposition, were models of excellence in legal research and writing. In short, these briefs proved that the district attorney was shown to have clearly violated established law in his instructions and arguments to the grand jury in numerous aspects. In the conclusion, they cited two quotes from cases that have shown the abuse of the grand jury system.
The first was Justice Douglas of the U.S. Supreme Court, who stated: “This great institution of the past [the grand jury] has long ceased to be the guardian of the people for which purpose it was created at Runnymede. Today it is but a convenient tool for the prosecutor – too often used solely for publicity. “Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury.”
In addition, they cited the case of United States v. Navarro-Vargas (9th Cir. 2005) 408 F.3d 1184 at 1194: “Currently, grand jurors no longer perform any other function but to investigate crimes and screen indictments, and they tend to indict in the overwhelming number of cases brought by prosecutors. Because of this, many criticize the modern grand jury as no more than a ‘rubber stamp’ for the prosecutor.
“Day in and day out, the grand jury affirms what the prosecutor calls upon to confirm – investigating as it is led, ignoring what it is never advised to notice, failing to indict, or indicting as a prosecutor ‘submits’ that it should.”
The only citation which I personally wanted to see in this brief, but the cooler legal minds prevailed, was the following: “The fundamental criticism of grand juries can be stated simply. Many believe that the ‘shield’ works poorly and that the ‘sword’ works only too well. The grand jury is frequently criticized for failing to act as a meaningful check on the prosecutor’s charging decisions; according to the clichés, it is a ‘rubber stamp,’ perfectly willing to ‘indict a ham sandwich’ if asked to do so by the government.”
In the end, the defense opined to the Superior Court in Humboldt County that it had the option of granting an extremely well-documented and researched Penal Code §995 motion, thereby dismissing the action without having to address the Johnson Motion, or addressing the Johnson Motion, which would require the Court to make findings on the credibility of two law enforcement officers for the Eureka PD versus the chief investigator for the District Attorney’s Office, as they had made diametrically opposed declarations under penalty of perjury. That was the status of the pre-trial motions as they came up for hearing on Aug. 26, 2008.
Part 5 — The result of extensive pretrial motions
To borrow the saying from Paul Harvey: “And now ...the rest of the story.”
After oral argument on Aug. 26, 2008, the Honorable John T. Feeney, Superior Court judge in Humboldt County, announced to a packed courtroom of law enforcement officers from all over Humboldt County and the California Highway Patrol, that he had made findings under Penal Code §995 as follows: The indictments were not supported by probable cause;
CONCLUSION
Having been involved in the defense of police officers for 34 of my 38 years in the practice of law, it is inconceivable to me that these proper results could have been achieved without the confidence and commitment of the PORAC Legal Defense Fund.
As you can see, every effort was brought to bear on this nationally important issue, and the PORAC Legal Defense Fund recognized the importance from the outset.
On behalf of myself and Lieutenant Antonio Zanotti, we cannot begin to thank the PORAC Legal Defense Fund enough for its unwavering support leading to this just and proper conclusion, and justice for all of those officers around this country involved at every level in Tactical Police Operations.
Charts and certified weather observations were obtained from the National Climatic Data Center for the time of the shooting on April 14, 2006.
Due to the 2008 leap year, it was determined that the nearest matching conditions in terms of sunrise, sunset, solar azimuth and elevation would occur at 12:33 p.m. on April 13, 2008. In particular, the angle of the sun would be a nearly exact match to that on the date of the incident.
Using digital imaging techniques, it was possible to locate the exact station or position from which the news photo had been taken. With current photos taken from the original camera station, further forensic imaging techniques enabled the scene investigators to position the windows of Moore’s former apartment nearly identical to the positions shown in the news photo, the exact position of the north window at the time the “hands free” signal was given.
Beginning at about 12:33 p.m., photographs of the apartment windows were taken from the position of the SWAT observer on the third floor of the Mason’s building. Photos were also taken from the rooftop where the patrol rifleman had been stationed.
Through a process of uniformly scaling the photos and creating semi-transparent digital overlays, the defense was able to establish that at the time of the “hands free” signal, the SWAT observer’s view of Moore’s right hand was blocked by objects and paper signs which Moore had placed in the window. Conversely, the photos taken from the vantage point of the patrol spotter unequivocally demonstrated that he did, in fact, have a clear view of Moore’s hands when he uttered the “hands free” radio transmission.
◼ Source
This is the second installment of the Misuse of the grand jury against law enforcement article, continued from last month. In this installment, we cover the pre-trial investigation, use of outside experts, the applicable law, and the successful result of extensive pre-trial motions. BY WILLIAM R. RAPOPORT
Part 2 — Pretrial Investigation
Although legal challenges to the validity of the charges would be vigorously argued in pretrial defense motions, it was nonetheless necessary to simultaneously proceed with matters in preparation for trial. While there are many facets to the pretrial investigative activities undertaken in this case, the initial efforts focused on a critical review and evaluation of witness statements.
Subsequent efforts would involve an analytical incident reconstruction in order to contrast and/or reconcile witness statements with the available evidence.
One of the prosecutor’s assertions in alleging criminal negligence was that the Eureka PD SWAT team made a warrantless entry into Cheri Moore’s apartment in the absence of exigent circumstances. Offered in support of this assertion was the fact that the Vern’s furniture showroom, across the street from Moore’s apartment, was not completely evacuated by the police. Humboldt County District Attorney Paul Gallegos argued that this demonstrated that the officers did not truly consider Moore to be a threat.
In fact, Vern’s management was advised that all persons on their premises should remain on the opposite side of the building, away from 5th Street. In what may be described as an exercise in basic geometry and trigonometry, it was possible for the defense to conclusively demonstrate that Moore’s potential field of fire extended less than halfway into Vern’s showroom. Thus, the directive to remain on the east side of the building was both reasonable and sufficient for the safety of the persons on the premises.
A more critical issue was raised in terms of the ability of the SWAT patrol rifleman to have seen Moore’s hands from his rooftop vantage point. Both at the Coroner’s Inquest, and again at the grand jury, witnesses were shown the scene photographs taken by investigators shortly after the shooting of Moore. All the photos show the upper pane of the north window in the closed position. This was the window where Moore was standing when the patrol rifleman communicated the “hands free” signal.
The SWAT observer in the Mason’s building testified that although he was closer and was using binoculars, he never saw Moore’s hands free when he heard the signal broadcast.
Some members of the media fueled the speculation that a bogus “hands free” signal was given as a pretext to enter Moore’s apartment and use deadly force to end the standoff. Following the Coroner’s Inquest, the editors of the North Coast Journal raised the question, “Why didn’t the spotter with the best view of Moore see her hands?” While not directly accusing the patrol rifleman of lying, District Attorney Gallegos was more than pleased to leave the grand jury with the impression that one of the two tactical observers was being untruthful. In the event of a jury trial, this apparent breach of credibility would weigh heavily against the defense.
DA Gallegos made a cardinal error in failing to thoroughly investigate the statements and testimony given by the patrol rifleman, who reported that he saw Moore’s hands free when she reached with her right hand for the latch to close the window. Instead, Gallegos apparently chose to go with the testimony of the SWAT observer and to leave the glaring contradiction unresolved in the eyes of the jury. This investigative failure would be akin to ignoring an alibi offered by a suspect. Even a novice in criminal law would be expected to have the sense to evaluate the credibility of an alibi.
In February 2008, nearly two years after the incident, defense investigator Michael Schott, working with this author on behalf of SWAT team commander Lt. Tony Zanotti, requested and obtained images captured during the standoff by a Eureka Reporter newspaper photographer. Unlike all of the evidence photos, these images showed the upper north window to Moore’s apartment to be open.
This should have come as no surprise to the prosecution, since these and similar images had previously appeared on the front pages of the local newspapers. In addition, TV news reports had also featured video clips showing the same window to be open shortly before the shooting. A Eureka Reporter staff member advised that no one else, including members of the District Attorney’s Office, had ever requested these photos.
In the course of resolving the “hands free” paradox, the LDF defense began with the premise that both spotter officers were telling the truth. The next step would involve reconstruction of the incident with respect to the view each spotter had as the final moments leading up to the shooting unfolded.
In March 2008, the LDF defense team formulated a plan to obtain detailed measurements and photographs at the scene on or about April 14, the two-year anniversary of the incident. formulated a plan to obtain detailed measurements and photographs at the scene on or about April 14, the two-year anniversary of the incident. Charts and certified weather observations were obtained from the National Climatic Data Center for the time of the shooting on April 14, 2006.
Due to the 2008 leap year, it was determined that the nearest matching conditions in terms of sunrise, sunset, solar azimuth and elevation would occur at 12:33 p.m. on April 13, 2008. In particular, the angle of the sun would be a nearly exact match to that on the date of the incident. Using digital imaging techniques, it was possible to locate the exact station or position from which the news photo had been taken.
With current photos taken from the original camera station, further forensic imaging techniques enabled the scene investigators to position the windows of Moore’s former apartment nearly identical to the positions shown in the news photo, the exact position of the North Window at the time the “hands free” signal was given.
Beginning at about 12:33 p.m., photographs of the apartment windows were taken from the position of the SWAT observer on the third floor of the Mason’s building. Photos were also taken from the rooftop where the patrol rifleman had been stationed.
Through a process of uniformly scaling the photos and creating semi-transparent digital overlays, the defense was able to establish that at the time of the “hands free” signal, the SWAT observer’s view of Moore’s right hand was blocked by objects and paper signs which Moore had placed in the window. Conversely, the photos taken from the vantage point of the patrol spotter unequivocally demonstrated that he did, in fact, have a clear view of Moore’s hands when he uttered the “hands free” radio transmission.
Part 3 — Outside Experts
In the search to locate experts to assist in the defense of Zanotti and Chief Dave Douglas, this office contacted a few lawyers who, in turn, contacted a few people in local law enforcement, and came up with two names to be called to explore their expertise in SWAT. One of those experts was David W. Bliss of International Training Resources in Mountain View, California.
As it turned out, Bliss had been, for years, training the Eureka PD’s SWAT team and was very familiar with this particular operation.
The other name was Stuart A. Meyers of Operational Tactics, Inc., in Hagerstown, Maryland. Meyers turned out to be the beginning of a serendipitous sequence of events that proves that at times “it is better to be lucky than good.” I placed a cold call to Meyers and explained my function in representing Lieutenant Zanotti in a SWAT operation in Humboldt County, California. I was sure that he did not know anything about it, but I wanted to ask him some questions.
To my surprise, Meyers told me that he did, in fact, know about this operation and explained to me that in June 2007, he had received a call from the chief investigator for the Humboldt County District Attorney’s Office, who ran the facts by him at that time. Meyers had taken notes of that conversation and confirmed that he had told the investigator that he, Meyers, didn’t see any criminal liability.
The California Supreme Court, in Johnson v. Superior Court (1975) 15 Cal. 3rd 248, held that the prosecution has an affirmative duty to advise the grand jury of known exculpatory evidence. So compelling was this Supreme Court decision that following that decision, the California legislature enacted Penal Code §§939.7 and 939.71, which codified this obligation, recognizing that the grand jury is a tool of the prosecution, and if the prosecution doesn’t tell the grand jury about such exculpatory evidence, they would not know to ask to hear it and, therefore, one side of the story would be completely missing, i.e., the defense.
Meyers had an incredible resumé, including training of hundreds of law enforcement agencies in SWAT tactics across the United States, training of multiple U.S. armed forces units, and having been selected as a special consultant to train the SWAT/sniper teams for deployment operations at the 2002 Olympics in Salt Lake City, Utah.
After I reviewed the grand jury transcript, it was clear that nowhere was his name mentioned by the district attorney - an obvious violation of the holding in Johnson v. Superior Court and Penal Code §§ 939.7 and 939.71.
With this as a starting point, I discussed with both Sergeant William Nova (the present head of the SWAT operations for the Eureka Police Department, who was on light duty on the date of the incident) and Lieutenant Murl Harpham (the former founder of the Eureka Police Department SWAT unit), both with extensive tactical experience, whether or not they had had any contact from the chief investigator from the District Attorney’s Office regarding this case.
Both told me, separately, that they had been questioned by the investigator and, like Stuart Meyers, each had advised the investigator that this was a textbook operation and they did not see any criminal liability.
As it turned out, the District Attorney’s Office also failed to mention either of these witnesses during the grand jury proceedings. With declarations from Meyers, Sergeant Nova and Lieutenant Harpham - all reciting the same scenario - the “Johnson Motion” took full form. When faced with this motion, the district attorney and his chief investigator filed declarations in opposition to the motion. Meyers, Nova, and Harpham responded, using terms that characterized the opposition as misleading and false.
Over a period of several months after the grand jury indictment was returned (based on incomplete information), I also received dozens of calls from SWAT commanders throughout the United States expressing concern about this indictment. In order to find some outside, yet local, expertise, I contacted Ron McCarthy, a retired sergeant from the Los Angeles Sheriff’s Office, now doing private consulting in SWAT tactics. McCarthy is located in San Clemente, California, and has an extensive background in SWAT expertise and has trained and taught in California and in other states.
I was advised that I might want to also contact Deputy Chief Mike Hellman of the Los Angeles Sherriff’s Office regarding his input into the propriety of this SWAT operation. Deputy Chief Hellman, at his own expense, put in hundreds of hours reviewing transcripts and reports and advising me regarding the propriety of each step of the operation.
At this point, I was comfortable with the level of expertise that we had brought to bear on the tactical aspect of this SWAT operation, but now needed assistance on the legal aspects of the viability of this indictment.
With the authority of the Legal Defense Fund, I enlisted the aid of an outside research attorney - Renee Barenson of Redwood City, California - whose history included an assignment as clerk for the California Supreme Court for 6 ½ years. Barenson, on behalf of Lieutenant Zanotti, worked diligently with the assistance of attorney Greg Rael in Eureka (her counterpart in the “legal eagle” side of this case) to address the substantial legal deficiencies in the district attorney’s presentation of instructions and arguments to the grand jury, which helped me prepare for the Johnson Motion.
Part 4 — The Law that should have been givento the grand jury
Under California Penal Code §995(a)(B), an indictment shall be set aside by the Court, upon a defendant’s motion, if the defendant has been indicted without reasonable or probable cause. Greg Rael (on behalf of Chief Douglas) and Renee Barenson (who was specially hired by the PORAC Legal Defense Fund on behalf of Lieutenant Zanotti) set about to review with a fine tooth comb the Grand Jury Transcripts (1,687 pages) and the numerous exhibits, jury instructions, and argument by the district attorney. What they discovered can only be characterized as a “Target Rich Environment.” Their 73-page brief under Penal Code §995, and their 25-page rebuttal to the district attorney’s opposition, were models of excellence in legal research and writing. In short, these briefs proved that the district attorney was shown to have clearly violated established law in his instructions and arguments to the grand jury in numerous aspects. In the conclusion, they cited two quotes from cases that have shown the abuse of the grand jury system.
The first was Justice Douglas of the U.S. Supreme Court, who stated: “This great institution of the past [the grand jury] has long ceased to be the guardian of the people for which purpose it was created at Runnymede. Today it is but a convenient tool for the prosecutor – too often used solely for publicity. “Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury.”
In addition, they cited the case of United States v. Navarro-Vargas (9th Cir. 2005) 408 F.3d 1184 at 1194: “Currently, grand jurors no longer perform any other function but to investigate crimes and screen indictments, and they tend to indict in the overwhelming number of cases brought by prosecutors. Because of this, many criticize the modern grand jury as no more than a ‘rubber stamp’ for the prosecutor.
“Day in and day out, the grand jury affirms what the prosecutor calls upon to confirm – investigating as it is led, ignoring what it is never advised to notice, failing to indict, or indicting as a prosecutor ‘submits’ that it should.”
The only citation which I personally wanted to see in this brief, but the cooler legal minds prevailed, was the following: “The fundamental criticism of grand juries can be stated simply. Many believe that the ‘shield’ works poorly and that the ‘sword’ works only too well. The grand jury is frequently criticized for failing to act as a meaningful check on the prosecutor’s charging decisions; according to the clichés, it is a ‘rubber stamp,’ perfectly willing to ‘indict a ham sandwich’ if asked to do so by the government.”
In the end, the defense opined to the Superior Court in Humboldt County that it had the option of granting an extremely well-documented and researched Penal Code §995 motion, thereby dismissing the action without having to address the Johnson Motion, or addressing the Johnson Motion, which would require the Court to make findings on the credibility of two law enforcement officers for the Eureka PD versus the chief investigator for the District Attorney’s Office, as they had made diametrically opposed declarations under penalty of perjury. That was the status of the pre-trial motions as they came up for hearing on Aug. 26, 2008.
Part 5 — The result of extensive pretrial motions
To borrow the saying from Paul Harvey: “And now ...the rest of the story.”
After oral argument on Aug. 26, 2008, the Honorable John T. Feeney, Superior Court judge in Humboldt County, announced to a packed courtroom of law enforcement officers from all over Humboldt County and the California Highway Patrol, that he had made findings under Penal Code §995 as follows: The indictments were not supported by probable cause;
The entry into Cheri Moore’s apartment without a warrant was lawful, given (a) her earlier brandishing of a firearm at the officers, and (b) the exigent circumstances of her threat to burn down the apartment building;
There was not reasonable or probable cause to support a finding or conclusion that any law enforcement officer involved, including Douglas and Zanotti, committed an unlawful act or acted in an aggravated or reckless manner, causing the death of Cheri Moore;
And there was insufficient evidence presented to the grand jury to support a finding that Douglas and/or Zanotti failed to adequately supervise the SWAT and Crisis Negotiation teams.
The Court made other findings about the district attorney’s failures to present relevant law and instructions to the grand jury, but the bottom line, according to the Court, was “The § 995 Motion is granted and the charges are dismissed.”
CONCLUSION
Having been involved in the defense of police officers for 34 of my 38 years in the practice of law, it is inconceivable to me that these proper results could have been achieved without the confidence and commitment of the PORAC Legal Defense Fund.
As you can see, every effort was brought to bear on this nationally important issue, and the PORAC Legal Defense Fund recognized the importance from the outset.
On behalf of myself and Lieutenant Antonio Zanotti, we cannot begin to thank the PORAC Legal Defense Fund enough for its unwavering support leading to this just and proper conclusion, and justice for all of those officers around this country involved at every level in Tactical Police Operations.
Charts and certified weather observations were obtained from the National Climatic Data Center for the time of the shooting on April 14, 2006.
Due to the 2008 leap year, it was determined that the nearest matching conditions in terms of sunrise, sunset, solar azimuth and elevation would occur at 12:33 p.m. on April 13, 2008. In particular, the angle of the sun would be a nearly exact match to that on the date of the incident.
Using digital imaging techniques, it was possible to locate the exact station or position from which the news photo had been taken. With current photos taken from the original camera station, further forensic imaging techniques enabled the scene investigators to position the windows of Moore’s former apartment nearly identical to the positions shown in the news photo, the exact position of the north window at the time the “hands free” signal was given.
Beginning at about 12:33 p.m., photographs of the apartment windows were taken from the position of the SWAT observer on the third floor of the Mason’s building. Photos were also taken from the rooftop where the patrol rifleman had been stationed.
Through a process of uniformly scaling the photos and creating semi-transparent digital overlays, the defense was able to establish that at the time of the “hands free” signal, the SWAT observer’s view of Moore’s right hand was blocked by objects and paper signs which Moore had placed in the window. Conversely, the photos taken from the vantage point of the patrol spotter unequivocally demonstrated that he did, in fact, have a clear view of Moore’s hands when he uttered the “hands free” radio transmission.
◼ Source
6.25.2009
Supes appoint Linda Atkins to North Coast Railroad Authority
Supes appoint Linda Atkins to North Coast Railroad Authority
http://www.times-standard.com/localnews/ci_12686197
Jessie Faulkner/The Times-Standard
Posted: 06/25/2009 01:15:37 AM PDT
Eureka City Councilwoman Linda Atkins will take a seat on the North Coast Railroad Authority board of directors at the end of the month.
The Humboldt County Board of Supervisors voted 4-1 to approve the appointment this week, with 5th District Supervisor Jill Duffy dissenting and adamantly stating her opposition -- not to Atkins, but to the application process.
Among her primary objections was the treatment of long-time NCRA board member Charles Olivier, whose seat Atkins will assume, as well as the lack of complete information on the applicant's philosophies and the related discussions held out of the public process.
Duffy said such handling of the matter creates strife on the board and in the community, and is insulting to the incumbent.
”In my opinion, it feels like a real slap in his face,” she said.
Third District Supervisor Mark Lovelace broached the subject earlier in the meeting, noting that he had heard comments in the community complaining about the suddenness of the appointment. Lovelace denied that contention, noting that the term's end was publicly posted as required on Dec. 16 and that he had met with all the applicants -- including incumbent Olivier -- and had read all the associated letters and supporting documentation.
”This hasn't been something sudden,” Lovelace said.
Lovelace later said that he had spoken with Olivier and was told that the incumbent wasn't interested in requesting
Advertisement
reappointment. However, on Monday, Lovelace said he had received a letter of interest from Olivier and applicant Dan Hauser, the latter throwing his support to the incumbent.
Second District Supervisor Clif Clendenen, who with 4th District Supervisor Bonnie Neely sponsored the agenda item, said he wasn't aware of a two-step process in making the appointment and had limited his discussions about the appointment to those with the item's co-sponsor due to Brown Act rules. Clendenen, who represents the board on the North Coast Railroad Authority, said he had spoken with the authority board's Chairman Allan Hemphill at the last meeting and learned at that time of Olivier's interest in staying on the board.
At the invitation of the board, Olivier took to the podium, citing his broad experience on West Coast ports and strong belief in the potential for the area pending improvements to what he described as 19th century infrastructure.
Olivier said he wasn't like Napoleon Bonaparte.
”We can all be replaced,” he said, “including me. If my term is over, I've enjoyed it all .... Either way, I'm a cheerleader. I'll continue to be a cheerleader of creating jobs here.”
Duffy wasn't alone in her concerns about the process. McKinleyville resident Dennis Mayo questioned how the recommendation for Atkins had come forward, why the board was considering replacing Olivier and, if so, why wasn't that replacement Dan Hauser, a former executive director of the North Coast Railroad Authority.
”To me,” he said, “the decision would be very clear, you choose Charles Olivier ... . I'd like to see this thought out a little more thoroughly.”
Ken Skaggs, a self-described resident of the greater Eureka area, said his vision was one of a Humboldt County with good-paying jobs. The railroad and harbor bring in industry that makes sense for Humboldt County, he said. The county needs a strong supporter of the railroad, he said.
The majority of the board remained at odds with Duffy's assessment that the process had gone wrong.
”I feel comfortable with the process and the recommendation to the board,” Neely said.
http://www.times-standard.com/localnews/ci_12686197
Jessie Faulkner/The Times-Standard
Posted: 06/25/2009 01:15:37 AM PDT
Eureka City Councilwoman Linda Atkins will take a seat on the North Coast Railroad Authority board of directors at the end of the month.
The Humboldt County Board of Supervisors voted 4-1 to approve the appointment this week, with 5th District Supervisor Jill Duffy dissenting and adamantly stating her opposition -- not to Atkins, but to the application process.
Among her primary objections was the treatment of long-time NCRA board member Charles Olivier, whose seat Atkins will assume, as well as the lack of complete information on the applicant's philosophies and the related discussions held out of the public process.
Duffy said such handling of the matter creates strife on the board and in the community, and is insulting to the incumbent.
”In my opinion, it feels like a real slap in his face,” she said.
Third District Supervisor Mark Lovelace broached the subject earlier in the meeting, noting that he had heard comments in the community complaining about the suddenness of the appointment. Lovelace denied that contention, noting that the term's end was publicly posted as required on Dec. 16 and that he had met with all the applicants -- including incumbent Olivier -- and had read all the associated letters and supporting documentation.
”This hasn't been something sudden,” Lovelace said.
Lovelace later said that he had spoken with Olivier and was told that the incumbent wasn't interested in requesting
Advertisement
reappointment. However, on Monday, Lovelace said he had received a letter of interest from Olivier and applicant Dan Hauser, the latter throwing his support to the incumbent.
Second District Supervisor Clif Clendenen, who with 4th District Supervisor Bonnie Neely sponsored the agenda item, said he wasn't aware of a two-step process in making the appointment and had limited his discussions about the appointment to those with the item's co-sponsor due to Brown Act rules. Clendenen, who represents the board on the North Coast Railroad Authority, said he had spoken with the authority board's Chairman Allan Hemphill at the last meeting and learned at that time of Olivier's interest in staying on the board.
At the invitation of the board, Olivier took to the podium, citing his broad experience on West Coast ports and strong belief in the potential for the area pending improvements to what he described as 19th century infrastructure.
Olivier said he wasn't like Napoleon Bonaparte.
”We can all be replaced,” he said, “including me. If my term is over, I've enjoyed it all .... Either way, I'm a cheerleader. I'll continue to be a cheerleader of creating jobs here.”
Duffy wasn't alone in her concerns about the process. McKinleyville resident Dennis Mayo questioned how the recommendation for Atkins had come forward, why the board was considering replacing Olivier and, if so, why wasn't that replacement Dan Hauser, a former executive director of the North Coast Railroad Authority.
”To me,” he said, “the decision would be very clear, you choose Charles Olivier ... . I'd like to see this thought out a little more thoroughly.”
Ken Skaggs, a self-described resident of the greater Eureka area, said his vision was one of a Humboldt County with good-paying jobs. The railroad and harbor bring in industry that makes sense for Humboldt County, he said. The county needs a strong supporter of the railroad, he said.
The majority of the board remained at odds with Duffy's assessment that the process had gone wrong.
”I feel comfortable with the process and the recommendation to the board,” Neely said.
5.20.2009
Voting NO is not enough
◼ California voters kill budget measures
The "big five" elected leaders -- Schwarzenegger and the legislative chieftains from both houses -- are slated to begin closed-door meetings today...
There's the source of your problem, and it is going to be more of the same. These are the people whose job it has been to keep the state financially healthy, whose job it was to make sure that they did not spend more than they had, and whose job it was to plan for a rainy day.
Instead they spend, and spent and spent, and they fought the Governor when he tried to make needed cuts. Again and again and again. They have had their chance. This last ditch attempt to get the voters to allow them to keep spending has failed. Their caucusing to defeat the opposing party has kept them from working for the people.
Now it is time to remove every last one from office - and failing that, since it cannot and will not happen, strip them of their party associations and affiliation for as long as they hold elected office. Force them back to work for the people they so wanted to serve, and not the party the ended up serving.
The "big five" elected leaders -- Schwarzenegger and the legislative chieftains from both houses -- are slated to begin closed-door meetings today...
There's the source of your problem, and it is going to be more of the same. These are the people whose job it has been to keep the state financially healthy, whose job it was to make sure that they did not spend more than they had, and whose job it was to plan for a rainy day.
Instead they spend, and spent and spent, and they fought the Governor when he tried to make needed cuts. Again and again and again. They have had their chance. This last ditch attempt to get the voters to allow them to keep spending has failed. Their caucusing to defeat the opposing party has kept them from working for the people.
Now it is time to remove every last one from office - and failing that, since it cannot and will not happen, strip them of their party associations and affiliation for as long as they hold elected office. Force them back to work for the people they so wanted to serve, and not the party the ended up serving.
Police bust McKinleyville pot garden
A large marijuana growing operation in McKinleyville was raided Thursday by Humboldt County sheriff's deputies, who reportedly found more than 900 marijuana plants growing inside the residence.
According to information from the Humboldt County Sheriff's Office, authorities arrested two suspects -- Justin David Anderson, 33, and Melissa Marie Frawley, 32 -- on suspicion of cultivating marijuana for sales.
After authorities raided the residence on the 1000 block of Kinglet Avenue in McKinleyville, where they found a marijuana growing operation inside the garage attached to the residence.
Deputies seized a total of 901 growing marijuana plants ranging in size from sin inches to four feet in height from three separate grow rooms. During the search, deputies also reportedly located four pounds of processed marijuana and two pounds of concentrated marijuana, or hash, from the inside of the residence.
According to HCSO information, police also located $15,710 in cash inside a safe in the residence. That money was seized for asset forfeiture, the Sheriff's Office reported.
Both Anderson and Frawley are being held in the Humboldt County jail on $20,000 bail.
The Times-Standard
Posted: 05/09/2009 02:43:20 PM PDT
◼ Car Chase and Shootout Rocks Humboldt County
◼ Eureka Pot Growing Couple Robbed and Beaten
◼ HCSO Press Release 4300 block of Little Fairfield
According to information from the Humboldt County Sheriff's Office, authorities arrested two suspects -- Justin David Anderson, 33, and Melissa Marie Frawley, 32 -- on suspicion of cultivating marijuana for sales.
After authorities raided the residence on the 1000 block of Kinglet Avenue in McKinleyville, where they found a marijuana growing operation inside the garage attached to the residence.
Deputies seized a total of 901 growing marijuana plants ranging in size from sin inches to four feet in height from three separate grow rooms. During the search, deputies also reportedly located four pounds of processed marijuana and two pounds of concentrated marijuana, or hash, from the inside of the residence.
According to HCSO information, police also located $15,710 in cash inside a safe in the residence. That money was seized for asset forfeiture, the Sheriff's Office reported.
Both Anderson and Frawley are being held in the Humboldt County jail on $20,000 bail.
The Times-Standard
Posted: 05/09/2009 02:43:20 PM PDT
◼ Car Chase and Shootout Rocks Humboldt County
◼ Eureka Pot Growing Couple Robbed and Beaten
◼ HCSO Press Release 4300 block of Little Fairfield
3.14.2009
Pot grows and repercussions
◼ The Long Thirst
Northern California’s Environmental Magazine
The Long Thirst
By LINNEA DUE
At a meeting in Mendocino County’s town of Willits in late October, what seems a fairly narrow topic—illegal water diversion on public lands—rapidly transmogrifies into a frightening evening of dying fish, dry rivers, and out-of-control toxic algae. On that chilly night, the event attracts more than a hundred people covered in fleece outer garments, many wanting to pick a bone with state regulators. It turns out at least one of the speakers has the same agenda.
Ron Pugh, a US Forest Service special agent in charge of illegal activities on public lands, has spent the past few years concentrating on illegal marijuana grows. Marijuana “gardens”—a misnomer on a grand scale—are responsible for the majority of thirsty straws draining rivers and creeks that cross public lands. Pugh flips up a slide showing the spread of illegal grows across the nation. “This, “ he says ominously, meaning Mendocino and Humboldt counties, the crown jewels of US marijuana production, “is not even one of the heaviest pockets.”
In 1995, foreign nationals, mostly Mexicans, began growing marijuana in Southern California mountains and parks. By ’97, grows had spread into every national park on the West Coast. In 2001, those grows expanded from California, Oregon, and Washington into Idaho, and now are spreading like a giant ink stain across the center of the country’s park and Bureau of Land Management (BLM) lands all the way to the East Coast.
Says Pugh about the sheer volume of grows, “This is not a hippie thing.” He’s come prepared with a list of comparisons between a “hippie”grow and a DTO site—one maintained by a drug trafficking organization. A traditional garden on public lands, Pugh says, has one or two growers and fewer than fifty plants. The gardener, who lives locally, hikes in every other day or so, carrying water for his plants. Firearms are uncommon, and locations are predictable. “They’re within a quarter mile of a road,” Pugh explains, “and they’re rarely uphill. White guys are lazy.”
The DTO sites, on the other hand, are as remote as the growers can get, often three miles from the nearest road. They contain an average of 6,600 plants, tended by an average of seven growers who live in tents the entire season, from May to October. The growers are aided by scanners, radios, night-vision goggles, an arsenal of weapons, and truckloads of plastic pipe to divert area streams to their plants, sometimes from as far as a half-mile away. When they abandon the site in the fall, they leave behind mountains of trash, about as much trash as a small city dump.
What they bring in is just as bad. “They smuggle in pesticides from Mexico,” Pugh says, “more potent than you can buy here. And believe me, they don’t care about the creeks.” When Pugh describes growers mixing chemicals directly in the creek to pump onto their plants, a moan ripples through the audience.
In a later email exchange, Pugh says that he’s had trouble getting people to understand the ramifications of the crisis: “That’s why I go to great effort to point out that we aren’t dealing with `just marijuana,’ but a huge environmental issue,” Pugh says. “Basically everyone cares, to some degree or other, about that.” Pugh gives his presentation about twice a month, he says, to spread the word to new people: “When they become informed,
they become outraged,” he says. “And outraged people demand action.”
The US Forest Service is not a drug agency, though recently DTO sites were reclassified as crime scenes, which allows inter-agency cooperation with local and national law enforcement. The agency can now sift through trash for phone numbers, receipts, and other tips that could extend criminal prosecution past the hired help and up to the drug lords at the top of the chain. Pugh evokes laughs when he quickly corrects himself while explaining how the combined law enforcement effort needs to locate Mr. Big—“or Ms. Big. Well, I’m pretty sure it is Mr. Big.”
Pugh emphasizes that while the marijuana grows are an enormous drain on resources both financial and environmental, they are also a huge safety issue—after all, these are public lands where anyone can hike. If you stumble on a scene, Pugh advises, retreat immediately and call for help; during this past season, DTO growers killed two hunters on BLM land in Humboldt County.
The Forest Service has no funding for cleanup and depends upon volunteers to help out. Pugh estimates that it takes $5,000 per acre to remove DTO infrastructure and another $5,000 to restore the site. “Eradicating these grows is a number-one national priority,” he says, explaining that he’s met with state and federal Congressional delegates
frequently over the past two years and that Dianne Feinstein, a member of the Senate Committee
on the Judiciary, is particularly concerned.
Mendocino County Sheriff Tom Allman supplies the local picture, noting that the county’s per capita sales of rat poison are the highest in the nation; growers buy rat poison by the pallet because watering the grow sites attracts rodents. This poison ultimately contaminates the soil and creeks while poisoning raptors and other animals that eat the dead vermin. DTO growers also routinely shoot wildlife.
Most of all, they consume water. “As you go downstream on the Eel, the river should grow,” says Allman. “Instead, it gets smaller because people are pumping into storage tanks and directly into gardens.” Allman estimates that 3.6 million pot plants are grown on public lands—“That’s 3.6 million gallons of water a day,” he says, “pumped out of our creeks and rivers.” Allman pledges to respond to anonymous GPS reports of pumps and hose: “I’ll pull pumps,” he promises. “We’ll fly tributaries. I want to see the salmon come back.”
Salmon are equal opportunity victims, not just impacted by foreign nationals growing pot on public lands. As fisheries and watershed scientist Patrick Higgins points out, many of us are killing the creeks and rivers by supporting agriculture that relies on illegal diversions and unpermitted dams. Higgins, from Arcata’s Kier Associates, comes armed with graphs showing the number of illegal diversions and dams outnumber permitted diversions all along the North Coast and in Napa and Lake counties.
Higgins recalls fishing in Mendocino County’s Outlet Creek during the ‘60s, when it was loaded with steelhead. By 1996, because of illegal drafting, parts of the creek were dry in the summer, stranding fish in deep pools—pools from which diesel pumps lift water daily. Higgins says there are 1,700 illegal diversions in Marin County alone. Flyovers show illegal ponds everywhere, for vineyards and other agricultural uses. The Napa River used to have Coho salmon, the Navarro is dry, and so is the Gualala. Creeks dry between pools that often become clogged with algae that grows in the too-warm, too-still water. When the algae blooms, it releases a nerve toxin that has poisoned dogs and wildlife.
By email, Higgins sent a chart showing the difference in fish populations during El Niño and Niña years—populations fluctuate depending upon drought and full water flows. Through drafting and illegal dams, we’ve created a couple decades of drought-like conditions, even though we’ve actually had wet years like 2005. When a real drought comes along—as it has now—the fish are already stressed and in historically low numbers. “We have a regional crisis,” Higgins says. “There’s something called public trust. We all own the fish, and we all own the water. We’ve lost public trust in this culture.”
Higgins has a laundry list of those not “minding the store,” including the California State Water Resources Control Board: “seldom seen and completely ineffective,” he charges. The water board says that because of limited resources, its enforcement style is informal. It tends to respond to violations by issuing retroactive permits for illegal diversions that may have existed for years: “They send people a postcard or an email and call it informal enforcement,” Higgins says. He calls for profound reform, including requiring that all diversions carry a permit and that management of surface and groundwater be turned over to a state agency with public trust as its watchword. Illegal dams should be torn out, he says, and unpermitted diversions penalized by administrative fines of $500 daily. “It’s just a grab,” Higgins concludes. “When you disturb landscapes, the landscape reacts. If you change the nature of a watershed, you change everything.”
Published in Terrain Magazine, Spring 2009
Northern California’s Environmental Magazine
The Long Thirst
By LINNEA DUE
At a meeting in Mendocino County’s town of Willits in late October, what seems a fairly narrow topic—illegal water diversion on public lands—rapidly transmogrifies into a frightening evening of dying fish, dry rivers, and out-of-control toxic algae. On that chilly night, the event attracts more than a hundred people covered in fleece outer garments, many wanting to pick a bone with state regulators. It turns out at least one of the speakers has the same agenda.
Ron Pugh, a US Forest Service special agent in charge of illegal activities on public lands, has spent the past few years concentrating on illegal marijuana grows. Marijuana “gardens”—a misnomer on a grand scale—are responsible for the majority of thirsty straws draining rivers and creeks that cross public lands. Pugh flips up a slide showing the spread of illegal grows across the nation. “This, “ he says ominously, meaning Mendocino and Humboldt counties, the crown jewels of US marijuana production, “is not even one of the heaviest pockets.”
In 1995, foreign nationals, mostly Mexicans, began growing marijuana in Southern California mountains and parks. By ’97, grows had spread into every national park on the West Coast. In 2001, those grows expanded from California, Oregon, and Washington into Idaho, and now are spreading like a giant ink stain across the center of the country’s park and Bureau of Land Management (BLM) lands all the way to the East Coast.
Says Pugh about the sheer volume of grows, “This is not a hippie thing.” He’s come prepared with a list of comparisons between a “hippie”grow and a DTO site—one maintained by a drug trafficking organization. A traditional garden on public lands, Pugh says, has one or two growers and fewer than fifty plants. The gardener, who lives locally, hikes in every other day or so, carrying water for his plants. Firearms are uncommon, and locations are predictable. “They’re within a quarter mile of a road,” Pugh explains, “and they’re rarely uphill. White guys are lazy.”
The DTO sites, on the other hand, are as remote as the growers can get, often three miles from the nearest road. They contain an average of 6,600 plants, tended by an average of seven growers who live in tents the entire season, from May to October. The growers are aided by scanners, radios, night-vision goggles, an arsenal of weapons, and truckloads of plastic pipe to divert area streams to their plants, sometimes from as far as a half-mile away. When they abandon the site in the fall, they leave behind mountains of trash, about as much trash as a small city dump.
What they bring in is just as bad. “They smuggle in pesticides from Mexico,” Pugh says, “more potent than you can buy here. And believe me, they don’t care about the creeks.” When Pugh describes growers mixing chemicals directly in the creek to pump onto their plants, a moan ripples through the audience.
In a later email exchange, Pugh says that he’s had trouble getting people to understand the ramifications of the crisis: “That’s why I go to great effort to point out that we aren’t dealing with `just marijuana,’ but a huge environmental issue,” Pugh says. “Basically everyone cares, to some degree or other, about that.” Pugh gives his presentation about twice a month, he says, to spread the word to new people: “When they become informed,
they become outraged,” he says. “And outraged people demand action.”
The US Forest Service is not a drug agency, though recently DTO sites were reclassified as crime scenes, which allows inter-agency cooperation with local and national law enforcement. The agency can now sift through trash for phone numbers, receipts, and other tips that could extend criminal prosecution past the hired help and up to the drug lords at the top of the chain. Pugh evokes laughs when he quickly corrects himself while explaining how the combined law enforcement effort needs to locate Mr. Big—“or Ms. Big. Well, I’m pretty sure it is Mr. Big.”
Pugh emphasizes that while the marijuana grows are an enormous drain on resources both financial and environmental, they are also a huge safety issue—after all, these are public lands where anyone can hike. If you stumble on a scene, Pugh advises, retreat immediately and call for help; during this past season, DTO growers killed two hunters on BLM land in Humboldt County.
The Forest Service has no funding for cleanup and depends upon volunteers to help out. Pugh estimates that it takes $5,000 per acre to remove DTO infrastructure and another $5,000 to restore the site. “Eradicating these grows is a number-one national priority,” he says, explaining that he’s met with state and federal Congressional delegates
frequently over the past two years and that Dianne Feinstein, a member of the Senate Committee
on the Judiciary, is particularly concerned.
Mendocino County Sheriff Tom Allman supplies the local picture, noting that the county’s per capita sales of rat poison are the highest in the nation; growers buy rat poison by the pallet because watering the grow sites attracts rodents. This poison ultimately contaminates the soil and creeks while poisoning raptors and other animals that eat the dead vermin. DTO growers also routinely shoot wildlife.
Most of all, they consume water. “As you go downstream on the Eel, the river should grow,” says Allman. “Instead, it gets smaller because people are pumping into storage tanks and directly into gardens.” Allman estimates that 3.6 million pot plants are grown on public lands—“That’s 3.6 million gallons of water a day,” he says, “pumped out of our creeks and rivers.” Allman pledges to respond to anonymous GPS reports of pumps and hose: “I’ll pull pumps,” he promises. “We’ll fly tributaries. I want to see the salmon come back.”
Salmon are equal opportunity victims, not just impacted by foreign nationals growing pot on public lands. As fisheries and watershed scientist Patrick Higgins points out, many of us are killing the creeks and rivers by supporting agriculture that relies on illegal diversions and unpermitted dams. Higgins, from Arcata’s Kier Associates, comes armed with graphs showing the number of illegal diversions and dams outnumber permitted diversions all along the North Coast and in Napa and Lake counties.
Higgins recalls fishing in Mendocino County’s Outlet Creek during the ‘60s, when it was loaded with steelhead. By 1996, because of illegal drafting, parts of the creek were dry in the summer, stranding fish in deep pools—pools from which diesel pumps lift water daily. Higgins says there are 1,700 illegal diversions in Marin County alone. Flyovers show illegal ponds everywhere, for vineyards and other agricultural uses. The Napa River used to have Coho salmon, the Navarro is dry, and so is the Gualala. Creeks dry between pools that often become clogged with algae that grows in the too-warm, too-still water. When the algae blooms, it releases a nerve toxin that has poisoned dogs and wildlife.
By email, Higgins sent a chart showing the difference in fish populations during El Niño and Niña years—populations fluctuate depending upon drought and full water flows. Through drafting and illegal dams, we’ve created a couple decades of drought-like conditions, even though we’ve actually had wet years like 2005. When a real drought comes along—as it has now—the fish are already stressed and in historically low numbers. “We have a regional crisis,” Higgins says. “There’s something called public trust. We all own the fish, and we all own the water. We’ve lost public trust in this culture.”
Higgins has a laundry list of those not “minding the store,” including the California State Water Resources Control Board: “seldom seen and completely ineffective,” he charges. The water board says that because of limited resources, its enforcement style is informal. It tends to respond to violations by issuing retroactive permits for illegal diversions that may have existed for years: “They send people a postcard or an email and call it informal enforcement,” Higgins says. He calls for profound reform, including requiring that all diversions carry a permit and that management of surface and groundwater be turned over to a state agency with public trust as its watchword. Illegal dams should be torn out, he says, and unpermitted diversions penalized by administrative fines of $500 daily. “It’s just a grab,” Higgins concludes. “When you disturb landscapes, the landscape reacts. If you change the nature of a watershed, you change everything.”
Published in Terrain Magazine, Spring 2009
3.08.2009
Detective testifies in Groh murder trial
☛ TS Detective testifies in Groh murder trial 2/26/09
The Times-Standard
Posted: 02/26/2009 01:16:15 AM PST
The trial of Rodney Groh continued Wednesday with testimony delivered by a Eureka Police Department detective who investigated the death of George Giguere, a Eureka man killed in May.
Groh, 55, is accused of killing Giguere, a longtime friend, inside their Budget Hotel room in May 2008. He has pleaded not guilty.
EPD Detective Terry Liles testified Wednesday he found blood smeared on Groh's hands and spattered on his clothing the night of the alleged murder. That evidence, he said, was collected and sent to a state crime laboratory for examination.
Liles said he also took a large metal flashlight from the scene of Giguere's alleged murder into evidence.
Groh's trial is expected to continue today.
The Times-Standard
Posted: 02/26/2009 01:16:15 AM PST
The trial of Rodney Groh continued Wednesday with testimony delivered by a Eureka Police Department detective who investigated the death of George Giguere, a Eureka man killed in May.
Groh, 55, is accused of killing Giguere, a longtime friend, inside their Budget Hotel room in May 2008. He has pleaded not guilty.
EPD Detective Terry Liles testified Wednesday he found blood smeared on Groh's hands and spattered on his clothing the night of the alleged murder. That evidence, he said, was collected and sent to a state crime laboratory for examination.
Liles said he also took a large metal flashlight from the scene of Giguere's alleged murder into evidence.
Groh's trial is expected to continue today.