an autodidact meets a dilettante…

‘Rise above yourself and grasp the world’ Archimedes – attribution

Posts Tagged ‘law

waiting for Mueller – the many and varied problems for Trump

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There are undoubtedly billions of worthier subjects to focus on than Trump, but I do find it hard to look away for long from the slow-moving train wreck – and I’m still nursing my prediction that he’ll be out by year’s end. Of course I keep stumbling at obstacles, and anything that gets in the way of justice being the same for everyone seems to me an unnecessary and illegitimate obstacle. Now it’s this ridiculous notion that you shouldn’t charge a President around election time. It’s bullshit. It should be absolutely clear that you should charge any felon precisely when all is in order to charge him, no matter what time of year it is.

But that apparently isn’t how it goes in the USA, and so we have to wait for two whole months to bring charges, assuming this ‘etiquette’ is followed. And then what happens after the mid-term fall-out? Too close to Christmas?

Needless to say, I’m completely opposed to the truly criminal notion that you can’t charge a head of state while in office. Only in America is such a notion even thinkable – a testament to one of the worst political systems in the western world.

Anyway, no sense bemoaning a system that the US Congress, fourth estate and intelligentsia are too jingoistic to even be capable of examining let alone reforming. So instead I’ll focus here on the legal jeopardy Trump finds himself in from various directions, as we wait for the Mueller team to hopefully finish him off.

Firstly the Michael Cohen case. Cohen is currently out on bail awaiting sentencing on eight criminal counts he has pleaded guilty to. According to this article in The Hill, from August 21, Cohen won’t be sentenced until December 12, which seems an eternity to me. It’s expected that he’ll do a fair amount of jail time.

What has this to do with Trump? Cohen was his fixer and I’m not sure how many of the felonies he’ll be sentenced on relate to Trump or his organisation. Some reports claim that more than one felony relates to the 2016 campaign. What is clear is that Cohen seems bent on revenge for the way Trump, who never treated him particularly well in spite of his loyalty, dropped him like a hot potato shortly after Cohen’s offices and home were raided by the FBI. In pleading guilty to one charge of campaign violations relating to the Stormy Daniels payment, Cohen implicated Trump as the person who directed his activities. This should have led directly to Trump’s arrest, but for some reason this hasn’t happened. In any case it stands to reason that whatever Cohen’s sentence on this particular count, Trump’s should be greater, as the ‘Mr Big’ in this case.

Of course Trump’s legal jeopardy from the Cohen direction is probably, or hopefully, more considerable than just the Stormy matter. Cohen struck a plea deal with the SDNY, clearly in the hope of getting a lighter sentence in return for dirt on Trump, but the plea deal seems to have been minimal, most likely because the Mueller team, who are surely in close contact with SDNY, have enough dirt on Trump already (particularly from the raid on Cohen’s offices and home, conducted by the SDNY, but nothing prevents the FBI from sharing information – in fact such sharing is essential), and they don’t like working with criminals if they can help it. Still, they may call on Cohen if they need to, which all spells trouble for Trump. Meanwhile, Emily Jane Fox writes In Vanity Fair (September 11) that Cohen’s attorney is set to meet New York State tax officials who are looking into the Trump Organisation’s finances. Hopefully Cohen will have more damning stuff on that topic. I should also add that it’s this SDNY probe into Cohen that has granted immunity to the CFO of the Trump Organisation, as well as to David Pecker, chief of the National Enquirer, a gutter mag dedicated to spruiking Trump’s ‘qualities’ and to ‘catching and killing’ negative stories about him. So, more legal jeopardy there.

Secondly, on those New York State tax officials. A Washington Post article from July 20 revealed that the state’s tax agency is investigating Trump’s personal charity (sic), the Trump Foundation. New York’s embattled governor, Andrew Cuomo, who appears to have launched the investigation under pressure from constituents, has said that the probe could lead to criminal charges. Trump’s children would be involved as well as himself.

Thirdly, the tax probe comes on the heels of a civil suit, filed in June by the New York Attorney-General, claiming that Trump and three of his children ran a charity ‘engaged in persistently illegal conduct.’ The Attorney-General’s department has been considering pursuing criminal charges, but apparently there’s a race to become the next Attorney-General there, and the Democratic candidates are all promising to go after Trump if elected. They’re hoping to focus on the Emoluments Clause in the Constitution, which is altogether a good thing. Not being well up on how the US electoral system works, I’m not sure how long it will take for this all to be sorted, but it definitely looks like there will be an annihilation of Republicans in the mid-terms, and this Attorney-General race will be caught up in that. So, more trouble for Trump.

Fourthly, the next Manafort trial starts soon, and it involves Russia. Manafort is apparently trying to negotiate a plea deal as I write, one that won’t involve dumping on Trump, and won’t involve actually going through the trial process. It’s hard to imagine that happening. An article in Fortune, out yesterday (September 13) claims that a deal has more or less been struck, but it’s hard to imagine such a deal not involving Trump. This deal may be announced as early as today. Considering that the Mueller team holds all the cards – a slam-dunk set of convictions on the second trial, and the possibility of retrying the ten counts that were left undecided in the first trial, it’s hard to imagine that Mueller wouldn’t have extracted some damning evidence about Trump, the campaign, and Russian money in exchange for any deal. Maybe Trump won’t be touting Manafort as a ‘great guy’ for much longer – but on the other hand, Manafort may just be lookingfor a way to avoid the expense of a court case he can’t win, and he’s hanging out for a pardon from Trump.

And fifthly, the Mueller probe itself. I see it dividing into three parts – conspiracy, obstruction of justice, and financial crimes.

Conspiracy charges will depend on whether Trump and/or his campaign knew about the Russian interference in the 2016 elections, an interference amply documented in the two speaking indictments, in February and July of this year, which together charged 25 Russian individuals and three Russian companies with hacking of servers and hijacking of social media sites to influence the election outcome, entirely in Trump’s favour. No American citizens were charged, but other persons ‘known and unknown’ to the investigators were repeatedly mentioned. The second indictment also raised profound suspicions that the Trump campaign had knowledge of the hacking, because of certain dates matching comments at the time by Trump himself. Apart from this there is the meeting at Trump Tower on June 9 2016, which I personally think is less significant, but about which there have clearly been cover-ups and lies by the Trump campaign and administration, including by Trump himself. It has always appeared to me highly likely that Mueller has an abundance of material on this conspiracy.

On obstruction, although much of the focus here has been on the firing of James Comey for the illicit reason of trying to stop the Russia investigation, it seems clear to me that the relentless public attacks on the Mueller enquiry, the FBI and the DoJ, and the hounding of  specific officers within those departments, are all very serious cases of obstruction of justice, so flagrant and criminal in intent in fact that they should have warranted dismissal from office long ago. These are questions, of course, about the limits to free speech, but one would think that such limits would indeed apply to the Head of State when speaking of cases in which he himself is implicated. The more power you have to influence, the more responsibility you should bear in speaking of such institutions as investigating services, the judiciary and the free press, a matter which should be inscribed in law. In any case it’ll be interesting to see what the enquiry’s findings are on this topic. They should be fulsome.

On financial misdealings and any other bits and pieces of criminality that might be uncovered during the enquiry, There’s potentially a lifetime of stuff there. It’s pretty certain that Mueller has all the tax returns, and knows a thing or two about Deutsche Bank’s dodgy dealings with Trump. This is the most murky of areas, obviously, but there are outstanding financial experts on Mueller’s team who’ll be having a wonderful time joining all the dots.

So who knows when the fireworks will start, but I’ll be happy to be viewing them from a safe distance. Meanwhile I’ll try, really try, to focus on other things for a couple of months.

 

Written by stewart henderson

September 14, 2018 at 4:58 pm

Trump: the slo-mo train wreck is far from over – it’s likely to get much worse

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some semi-reluctant future reading – or maybe I’ll just watch the video

This morning I heard an American pundit saying Trump has got to change his approach and become more co-operative with investigating authorities, because his strategy isn’t working. Everybody is offering Trump free advice but he’s unlikely to take it because he’s Trump. People don’t change very much, they certainly don’t become completely different people, certainly not after the age of seventy. Trump has spent his life among crooked rich people, he was brought up by crooked rich people, he only admires crooked rich people, and he will die as crooked as he has lived. That’s his fate.

What pundits should really be working on, IMHO, is limiting his power and curbing his destructive tendencies. Now that the cognoscenti are coming to realise that better vetting processes should have applied to candidates for the overly-powerful position of POTUS, they should be doing their utmost to put obstacles in the way of that power (followed by root and branch reform of the entire political system once Trump is dumped). For example, putting real pressure on White House staffers, many of whom should know by now that the writing’s on the wall, to resign en masse. Or even just to suggest that they do so? Rats tend to desert a sinking ship, but perhaps not if they don’t sense any land in the offing, a safe haven to run to. So maybe it would be the most ethical thing to do, now, to entice Trump’s enablers to abandon him, not entirely without penalty, but with less penalty than if they stick with him to the end. A bit like offering limited immunity. And in the same way, the media should be onto those in Congress who are enabling Trump, or are not being sufficiently vocal in their opposition, or their position in general, to speak their minds more clearly. It’s time for more media hounding, for the sake of the beleaguered nation. Two of Trump’s most vocal supporters in Congress are now being prosecuted as swamp creatures, not surprisingly. More needs to be made of this.

I’m not talking here about ‘weaponising’ the media, or being partisan. This is clearly about corruption and the law. My own early recognition of Trump as a boorish, tasteless, noisome, proudly ignorant, self-serving buffoon had little to do with politics. I’ve learned over this year that he was a ‘lifelong Democrat’ until a few years ago. I didn’t believe it any more than I believe he’s a Republican now. He knows as much about politics, history and international affairs as he does about science. But I’ve also learned more about his inherent dishonesty and crookedness. The responsible media generally recognise this, and they should play, more openly, a heroic role in bringing him down. It wouldn’t be a partisan role, it would be about nation-building, or nation-repairing.

It’s important here not to be partisan, and that’s why it’s essential to focus on the law rather than on politics. Certainly there needs to be a political backlash against Trump, and against his Republican enablers, but I’ve already expressed my skepticism of impeachment, a political process, as a means of dismissing political leaders. All citizens should be subject to the law, regardless of position or profession. This is not to say the mid-term elections aren’t important, as the country needs more liberals and democrats in positions of authority to counter Trump’s fascistic or mafioso-style approach to government. However, the mid-term elections are over two months away, plenty of time for more damage to be done to the country’s political institutions by an increasingly desperate ‘Commander-in Chief’.

The preposterous and disgustingly juvenile, and typically American, idea that their POTUS may be above prosecution simply because he’s too important and vital to the workings of the State, needs to be punctured beyond repair. This seems to me a high-priority issue. Of course, the fact that the USA has given its POTUS too much power will make things difficult in the immediate post-Trump period, but this is a tough lesson that needs to be learned. It seems a constitutional crisis may be just what’s needed to get the nation to wake from its jingoistic slumber and start working on a better, more collegial and distributed power system than the current hero-worshipping laughing-stock it has created for itself.

So let’s go to the issue of indictment, and later we’ll go to the aftermath, which will presumably be a Pence Presidency – not a pleasant prospect, from what I’ve heard.

Unfortunately the indictment of a sitting President is regarded as a constitutional matter – unlike the indictment of any other citizen, presumably. This is a situation that should be rectified. Section 3 of Article 1 of the US Constitution puts it thus:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust,or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Note the unclear wording here. It talks about impeachment first, which to my mind, is irrelevant. It’s the last part that is relevant, though it gets entangled with impeachment – ‘The party convicted shall nevertheless be liable to and subject to indictment’, etc. But impeachment is not about being convicted. The law convicts, surely. The Constitution was signed into law in 1787, and is a source of understandable pride to the American people, but it’s hardly to be expected that it would make everything clear and precise for the next two hundred-odd years. It looks as though indictment should follow impeachment, which is, it seems, misrepresented as ‘convicted’, but it cannot surely be the case that if the President commits what constitutes a ‘high crime or misdemeanour’ (and I really hope that term is clear in US law) he has to be impeached before being charged. That, to me, would be outrageous. It’s very obviously the wrong way round – though of course, you’d have to be sure that the Justice Department had a very sound case before proceeding – perhaps with a speaking indictment (I really like them things). And then, of course, if conviction occurs, impeachment wouldn’t be an issue. It would just be a matter of a change of residence.

It’s astounding, and frankly appalling, that some soi-disant constitutional lawyers really do argue for immunity (while in office) due to the heavy duties of the Presidency  (duties that Trump largely avoids), while other experts argue that Presidents really do have the power to pardon themselves. It’s yet another indication that Yanks, even high-powered legal eagle ones, are in thrall to the wankeries of their worst movies, featuring the vigilante superhero out to save the State from itself, with collateral damage just being part of the thrill.

Considering such jejune but baked-in attitudes about their ‘commander-in chief’, it’s unlikely that Americans will learn much from the current debacle. Still no proper vetting at the outset, still no reduction of pardoning and other powers, still no integration of the Presidency with Congress, still insufficient checks and balances, still the same childishly carnivalesque two-horse races every four years, still the same embarrassing, unreflective jingoism. And still, I find it all quite fascinating. I’m just glad I’m not actually there.

So what will happen by years’ end? Presumably impeachment proceedings, depending on the numbers in both houses – I haven’t yet read up on impeachment, what it requires and entails, and I’ll be doing that soon. But presumably impeachment isn’t easily enforceable, and Trump will ignore it and rely on his base to protect him. That’s when things will get really interesting.

Written by stewart henderson

August 27, 2018 at 1:04 pm

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the secret world of DCSI’s Screening Unit unrevealed

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the black box that keeps the Screening Unit’s processes hidden from the public

Jacinta: Ok so let’s do a deep dive into the screening unit, the processes involved, the law that’s being followed, the staffing, the numbers of people being processed, time frames, consequences, pushback, serious possibilities of redress, anything else we can think of.

Canto: So here’s the situation as it stands. I received the letter from the DCSI screening unit on October 30 last year claiming that I ‘pose a risk to the safety of children’. I filed an application for a review of this decision on October 31, and the review is registered as having been commenced on that day. As a result of that DCSI decision, I was suspended from my teaching position, without pay, on November 10, the day my five-week contract was completed. I’ve been working from contract to contract, like most of the teaching staff where I work, or worked, though I was given ‘priority’ as a teacher about two years ago.

Jacinta: So you’ll get your job back if the DCSI’s decision is overturned.

Canto: I don’t know if there’s any guarantee of that. I was told, too, by a lawyer from the Legal Services Commission (I’ve called the LSC three times so far about all this) that I should have a right to some pay even as a casual, but I’m feeling cowardly about making any demands upon my employer, because I really really don’t want to lose my job.

Jacinta: So today is March 6, and it’s been well over 4 months since your appeal was lodged.

Canto: Yes and I’ve written two emails of complaint to the screening unit, and I’ve made an official complaint to the Ombudsman’s office. A rep from the Ombudsman has emailed me twice since, and now my review has been given ‘priority’. Last week a woman from the screening unit rang me, asking me to resend information that I’d already supplied. She explained that attached materials often got lost in the to and fro of emails within the screening unit – which didn’t inspire me with confidence. She also assured me that, once I’d resent the materials, she would quickly shunt me along the line to the next assessor in the process, because I was now a ‘priority case’. This, after four months! I’d hate to think of the wait for those who aren’t given priority. Six months, a year, two years? It’s a very destructive and demoralising process.

Jacinta: For the innocent, which of course you are. So while you’re waiting, I suppose you’ll want to find out more about this screening process. It has become more rigorous, it seems. What triggered this more rigorous screening process, and when was it established? Has the screening unit been bolstered, in terms of resources and staffing, to deal with this more rigorous and time-consuming screening process?

Canto: Yes I’ll try to find out more about this online, because again I’m again a little cowardly about approaching DCSI directly. They’ll think I’m a trouble-making nuisance.

Jacinta: Good god Canto, you’re an innocent man who’s been dealt pretty shabbily, first by the police, than the DPP and now the DCSI, and you’re worried about raising a fuss?

Canto: Well, also, to be honest, I don’t think DCSI will be very co-operative.

Jacinta: There’s really nothing online about this. Nobody appears to be protesting apart from yourself, not online at any rate. There’s nothing negative at all about the Screening Unit, The ‘Me Too’ movement is featured strongly, and there’s a lot of irritation online that false allegations are given a lot of attention when under-reporting of real cases of sexual abuse, harassment and so forth, is more of a problem. So it’s not a good environment for bringing all this up. I suppose at least it wasn’t a female that falsely accused you. Females are considered more reliable.

Canto: Well, I’ve received an update from the Ombudsman’s office. Here’s the most important part of it:

As you are aware I have been assessing the processing of your application for a child related screening clearance. I have been provided with updates from the department and your application is still with the Assessment Team. I understand your initial application took 7 months to process. In the department’s  assessment you would be aware that the department is considering such information as your disclosable court outcomes from 2006 offences. The department should have advised you that your review is being managed by a team of people who process your application independently from the initial application  process. I would anticipate given the current backlog of applications the department is processing that your application may still take some weeks to finalise. This office has met with Screening Unit Officers and the Ombudsman has also met with the Chief Executive of DCSI, Mr Tony Harrison, about the delays in the processing of more complex applications. The department is considering strategies to counter the delay and our office will be advised of their progress. At this stage I do not think it is reasonable for this office to continue to monitor your individual application and I will now close your file. I understand that you are anxious to have your application finalised and invite you to recontact our office in approximately four to six weeks if your application is not finalised.

I’ve put the expression ‘2006 offences’ in bold because the expression was offensive to me, they were of course alleged offences, which were never even tested or explored in court let alone proven. But I don’t think the woman meant to offend me, it was inadvertent.

Jacinta: But wording matters hugely to the innocent, I understand. Anyway the letter provides useful information – you now know that the CEO of DCSI is Tony Harrison, and you learned previously that Kelly Tattersall is the director of the Screening Unit. Above all you’ve learned that there is in fact a backlog of applications and that they’re ‘considering strategies’ to counter the delay. It’s a very slight glimpse through the opacity of the Unit’s workings…

Canto: Another quibble I have – and you’re right, wording matters hugely to the innocent – is the reference to my case as ‘complex’. I don’t see it as complex at all, it’s extremely straightforward, but it was made complex by the behaviour of the police and the DPP.

Jacinta: I’ve found Tattersall on Linked-in. She’s been director of the Screening Unit since May 2013, so she would definitely know something you want to know – whether this ‘rigorous’ screening has been going on for the whole of her period in office, or whether it’s new, and exactly how new it is. She would also know, of course, just how many of these ‘complex cases’ there are. It’s so effing difficult to get any information.

Canto: Another person, who would know, of course, is this Tony Harrison. Just searching on him leads me to the ‘about us’ section of DCSI online. The department is overseen by the state minister Zoe Bettison. The website lists the Screening Unit as one of its assets, but I’m blocked from accessing it. It’s quite literally a black box!

Jacinta: Well I can understand the need for privacy of course, but the lack of public access to its general processes is a problem, to put it mildly. Sunlight is the best…. you know.

Canto: For what it’s worth, I’ve downloaded ta copy of the state’s Children’s Protection Act 1993, updated only last month, and we might look more deeply into that next time.

 

Written by stewart henderson

March 12, 2018 at 9:47 am

my battle for justice – contacting the DPP, among other things

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good question

The prosecution invokes nolle prosequi or dismissal when it has decided to discontinue a prosecution or part of it. Lawyers and judges refer to the charges “nol prossed” or dismissed. The prosecution may nol pross all charges against the defendant or only some.

Micah Schwartzbach, US Attorney

Today has been another of those down days, brooding and empty. But reading just the first couple of pages of Robert Sapolsky’s book Behave has somehow heartened me, by making me aware that I’m one of the lucky ones. Okay, I’ve lost my job, temporarily but probably permanently, and the injustice I’m suffering under is hardly life-threatening, and there are compensations, such as time to read and write, and being a lot more comfortably off then many others in many other countries. The damage to my reputation is minimal, since I don’t have much of a reputation or public profile, I’m just an obscure dilettante whose reclusive personality has made me a failure in friendship, in love, and in all the things that matter to the worldly world. But I miss my job and my students terribly.

Today is March 1, the first official day of autumn, and it’s coming up for 18 weeks since I lodged an appeal to have the decision of the DCSI* reviewed. No decision has yet been reached. I’ve contacted the Office of the Ombudsman, which has been on the case and has since sent me two emails, the last one today informing me that my ‘application is still being actively worked on’. I’m left to wonder what this activity entails. Are they looking at documents I don’t have access to, are they in contact with the DPP*, are they poring over the relevant Act*, are they in discussion or dispute over the danger of setting precedents, are they worrying about flouting directives from higher-ups?

I’ve also contacted the Legal Services Commission, for the third time, and they were very sympathetic and helpful, as always, and offered to send a letter to DCSI on their letterhead to help move things along. They also suggested I write to the DPP about the matter. I wrote to the DPP today, but I’m not particularly happy with my letter.

I need to write, and think, like a lawyer.

In the course of today’s activity I looked again at some of the documents I’ve collected, and they repay closer legal and analytic scrutiny. For example, here is the last paragraph of a letter sent to me on November 24 last year by the director of the DCSI Screening Unit, Kelly Tattersall:

… the Screening Unit noted the vulnerability of the child and whilst there appears to be some concern around the credibility of the allegations, the Screening Unit considered, that in undertaking a risk assessment where there are strong factors of concern, decision-makers should err on the side of caution. Further, that the Screening Unit’s paramount consideration(s)  are the rights, interests and wellbeing of children and their protection from harm.

There are three points I will make here.

First, the ‘vulnerability of the child’, was noted. What does this mean? Yes, the child was vulnerable – that’s why I took the role of his foster-carer. All of the kids in my care were vulnerable. So were all the under-eighteens I taught at college. This boy was no more, or less, vulnerable than any of the others. What point is being made here? Surely the point at issue here is the veracity of the boy’s story, not his vulnerability.

Second – ‘there appears to be some concern around the credibility of the allegations’. This made me perk up. Of course there was a great deal of concern about the boy’s credibility – I knew he was lying, I’m pretty sure my lawyer knew he was lying, and I’m very sure that the Anglicare social worker who was monitoring the placement knew he was lying, because she knew him, and she knew me. However, there was nothing in writing, as far as I knew, that cast doubt on his credibility, so how did DCSI know about this concern about his credibility (apart from my own commentary about the case)? Did they have documents from the police, for example, to that effect? If so, I want them.

Third, ‘where there are strong factors of concern, decision-makers should err on the side of caution’. The ‘strong factor of concern’ arises only on the assumption that the allegation is true, and again the reaction here is to the extraordinarily serious nature of the allegation, not to its veracity. And that is disastrous to any system of justice. As to erring on the side of caution, no no no. To err means to commit an error, to get it wrong. What decision-makers should be striving to do is to get it right. You shouldn’t be erring on any side.

I don’t know if that’s a brilliant legal analysis or not, but it definitely makes me feel better.

Another important point should be noted here. The screening unit may well argue that it isn’t expected that they be as rigorous as the law; that this isn’t their job. They might argue that it’s their job only to make recommendations based on possibility, or plausible possibility of harm to children. Organisations and employers are not obliged to follow those recommendations. But this would be disingenuous, in my view. Virtually all large employers apply the screening unit’s findings as a matter of policy, and DCSI is well aware of this. Furthermore, these screenings have a wider application than ever before, and an adverse finding will preclude the recipients from a very wide range of employment options, including most voluntary positions, for example in Community Centres, Parks and Recreation facilities, any place where children are likely to be present. These screening decisions are treated as law, for better or worse, and so need to be made with as much rigour as legal decisions. To do less would be unjust.

Another legal issue I need to clarify is the matter of nolle prosequi. When I’ve talked to the Legal Services Commission about this finding, they don’t seem to distinguish between nolle prosequi and dismissal. This is clearly a central issue. This is what the Screening Unit Director wrote in the above-mentioned letter:

The Screening Unit noted the matter was referred to a higher court, thus the magistrates court found a case to answer. Ultimately, despite notations indicating ‘serious concerns’ regarding the veracity of the allegations by the DPP, the matter resulted in a nolle prosequi outcome, which is not indicative of innocence or guilt, however the Screening Unit noted the matter was not dismissed or acquitted.

So here’s where the Screening Unit got the idea of ‘serious concerns’, though I don’t have that in any of my paperwork. But clearly the fact that it went to a higher court was an issue for the Unit. As well as the nolle prosequi finding, though I’ve read somewhere – and I might be wrong – that once it goes to a higher court, nolle prosequi is the best outcome a defendant can hope for (apart from acquittal, which was out of the question given the cost, the elaborate court proceedings etc).

So if this is true, the DPP must be blamed for allowing this matter to reach a higher court without having gathered evidence or even checking out the boy’s story. I might also blame the magistrate for saying I had a case to answer, though it appears he was directed entirely by the DPP.

So now to the boy’s story, or stories. I’ve gone through this before, but there’s some new material I hadn’t noticed before, which bears on the case.

According to a police statement written at about the time of my arrest, the boy ‘states at about 3.30 pm on Thursday 23rd September 2004, returned home from school..’ and it then goes on to describe how I raped him in the toilet of my home. It’s interesting to note that an exact date is given, though the boy didn’t tell his story until six months later. Further in the statement comes this: ‘Accused left toilet and victim went into bedroom and locked door’. As I’ve noted before, the phrase ‘locked door’, indicating that there was a lock on the bedroom door, were the only words in the whole statement that could be independently verified police. However the police made no attempt to verify this claim until after my case was taken to a higher court. Verification of this claim should have been a prerequisite for taking the case to a higher court. Let me make this clear: it doesn’t require anyone to be AN EFFING SHERLOCK HOLMES. It simply requires due diligence.

There were no locks on the boy’s bedroom door or any other bedroom doors. The boy didn’t notice this because he never felt unsafe. So he guessed, and lied. The police eventually came to my house, checked the doors, and the case was dismissed: nolle prosequi.

I should point out that, in a court appearance of 27 February 2006, this brief charge was made: that I, ‘between the 1st day of September 2004 and the 30th day of September 2004… had anal sexual intercourse with… without his consent.’ The charge was rape. And then in another court appearance dated May 3 2006, again the time period is 1-30 September, but this time I’m apparently charged with 2 counts of rape. Apparently the boy doubled down on his story, perhaps under pressure, apparently learning or guessing that the more horrific his tale, the more likely it would be believed. But it should also be noted that the claim that he was raped twice over a month makes it even more unlikely that he wouldn’t notice that there was no lock on his bedroom door. And there’s also ththee question  – since there was no lock on the door, why would I choose to attack him in the toilet? A fondness for the sordid and unclean?

Anyway, enough of this unpleasantness. The case against me is ridiculous. There are bigger fish to fry. Why exactly is this ‘rigourous’ screening being instituted? There doesn’t seem to be an increase in child abuse, so who’s driving this? And who’s suffering, beside myself? This is a can of worms that needs to be opened up. Sunlight is always the best disinfectant. We need to shine some of this light on the DCSI, and the government that’s driving this grand attempt to protect children, as male teachers leave the profession in droves.

I also want to focus on foster carers, those largely unsung heroes, and the lack of protection they get from jittery religious organisations, who have cornered this market. There’s more than one scandal going on here.

 

 

Written by stewart henderson

March 1, 2018 at 10:43 pm

the latest summary of my battle for justice

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SA’s Supreme Court, a possible destination

I’ve written five posts recently on what I call ‘the big lie’ (see links below), and I might end up turning it into a book. It looks like I’ll have plenty of time on my hands to do so. My last post was on January 20, and since then there’s been no word from DCSI (SA’s Department for Communities and Social Inclusion) on the review of the decision, which officially commenced on October 31 2017 – 105 days ago. On the website for the Screening Unit of DCSI (or DCSE in my case), we’re told that a review will take 6-8 weeks or longer. Of course they don’t say how long longer is.

105 days is of course exactly 15 weeks. I have been suspended from work without pay since November 10. I’d been in my job as an educator in English for Academic Purposes for only four years. It was mostly part-time, and TESOL is probably the most lowly-paid job in teaching, which is already well-recognised as an under-paid profession. However it’s the best job I’ve ever had, and I miss my students – a lot.

I point all this out because I want to make it clear that I lack the financial resources to hire a lawyer to help me clear my name in a civil or criminal court, even if there were any avenue for me to do so, and at this stage it appears not.

However, if I can find an avenue, I will represent myself.

So, two weeks ago I wrote an email to the people responsible for my review. I used the same email address they gave me for sending any further information that might assist my case – personal/professional references or any other documents I might have unearthed. My email was essentially a begging letter about the personal and financial stress I was going through due to their delayed decision. I received no response, so last week I wrote a letter of complaint to DCSI about the delay. I received no response from that either, so yesterday I filed an official complaint about the matter to the SA Ombudsman, whose office looks into official complaints about state government departments, inter alia. After managing finally to fill out correctly their not-so-user-friendly form, I was told they would respond within a fortnight.

So that’s where things stand at present, but I worry that the longer it takes for the Screening Unit to decide for or against me, the less likely it will be that I’ll be reinstated in my job, whatever the outcome.

Meanwhile, as well as trying to turn my mind to other things, and to blog about them, I’ve been looking online for possibilities for clearing my name, taking action against wrongful arrest or wrongful prosecution, and so forth. And I’ve come up pretty well empty. DCSI provided me with a pamphlet on Procedural Fairness as part of their request for further information back in April last year. Under ‘further avenues of appeal’ it states: ‘You may also seek a judicial review of  an administrative decision in the Supreme Court’. If the decision is against me, I will do that, but that won’t be enough, though it may be that the Supreme Court, in reviewing the case, will accept that a nolle prosequi decision was unfair in light of the complete absence of evidence presented. In which case, the DPP and SAPOL may have a case to answer, a case that I would be keen to pursue.

The problem with this, though, is that first and foremost I want my job back, and I’m getting on for 62 years of age. How long would all this take? And it’s also clear that seeking redress for false accusations, and even for unjust convictions leading to deprivation of liberty, is no easy matter in Australia. My online research on this stuff just leaves me feeling depressed. It should be said that the case of Roseanne Beckett, linked to above, ended well for her after 26 years (and the injustice she suffered completely dwarfs my own, to put it mildly).

My concern in fighting this case is:

First, to find out if the accuser is still sticking by his accusation.

Second, to determine how the police can justify not visiting the so-called scene of the crime until after the case had been transferred to a higher court (thus necessitating the production of evidence, or at least verification of the boy’s story).

Third, how can the police justify arresting me without evidence? Their own justification is stated tersely on their charge sheet:

‘Accused arrested to ensure appearance and due to the serious nature of the offence’.

So, two reasons are given. To take the second one first – due to the serious nature of the offence. Is it fair to arrest someone solely on the basis of a claim being serious or extreme? Think of the term used in science: extraordinary claims require extraordinary evidence. Prima facie, I can’t see how you can justify arresting someone for a crime as serious as rape, with all the opprobrium understandably attached to it, and the damage to the accused’s reputation, without any evidence whatever beyond the story of the accuser. To do so would, IMHO, lack due diligence to an extreme degree. So now to the first reason – to ensure my appearance – that is, to ensure I wouldn’t ‘do a runner’. However, this makes no sense. For many weeks before my arrest I was aware that a serious allegation had been made against me. I also made the police aware of this because, after weeks of being kept in the dark, I made an official complaint to the Police Complaints Authority about my situation. It was Anglicare who informed me, by phone, that a serious allegation had been made, immediately after they had manoeuvred my new foster-kid out of the house on a false pretext. Clearly, the police had contacted Anglicare about the allegation against me, and they (the police) would have ensured that no other minor was in my care until this matter was investigated. So the police knew that I knew something was afoot, and they would have known, or should have known, from the Police Complaints Authority matter, that I wasn’t going anywhere. In short, neither of the reasons given by the police for my arrest bear close scrutiny.

Fourth, how the DPP can justify proceeding, when their mission statement is clear that no case will be prosecuted unless there is a reasonable chance of conviction.

But at first glance there seems no avenue for fighting the whole case, so I would have to begin by fighting the DCSI’s decision. This fight would mean questioning why the screening unit looks upon nolle prosequi so negatively. But here I must say that my researches have uncovered something which I may have written about before, forgive me. That is, that there are three possible way in which the prosecution could be unsuccessful, not two, as I’d previously thought.  They are: a finding of not guilty (i.e. acquittal), which would entail an expensive full trial, which was never going to happen; a dismissal before arraignment, in which the DPP recognises it doesn’t have a case; and a nolle prosequi dismissal after arraignment, because the DPP has somehow convinced the magistrate that the defendant has a case to answer. It is because the case was sent to a higher court at arraignment (or did the arraignment actually take place in the higher court? I’m not sure) that I’m in the position I’m now in, without a police clearance, and in danger of never being able to teach again, even in a voluntary capacity, at least not in a community centre, where these more stringent police clearances are now mandatory.

In any case, it’s time now to act, I can’t keep waiting, stuck like a rabbit in the headlights. I’ve been too passive in this case. I need to take it to the Supreme Court, if possible – regardless of the eventual decision of DCSI.

https://ussromantics.com/2017/11/11/the-battle-for-justice-part-1-some-background-to-the-case/

https://ussromantics.com/2017/11/13/the-battle-for-justice-part-2-the-problem-with-nolle-prosequi/

https://ussromantics.com/2017/11/14/the-battle-for-justice-part-3-is-there-any-way-to-clear-your-name/

https://ussromantics.com/2017/11/21/the-battle-for-justice-an-update-the-problem-with-documents/

https://ussromantics.com/2018/01/20/police-procedures-the-dpp-and-subtle-corruption/

 

Trump downfall update. The latest indictments of Russians obviously undercuts Trump’s claims about the ‘Russian hoax’ as well as the ‘tattered FBI’ and might have an affect on the Trumpets. They should have an undermining effect on the Congress Trumpets in particular – Nunes, Collins, Cotton and co. If, after this, the GOP Congress continues to deny or do nothing about Russian conspiracy to influence elections, including the coming mid-terms, isn’t this obstruction of some sort? Or some sort of passive collusion? It certainly is an outrage. Pressure should next be brought to bear on sanctions, and that would mean more pressure on Trump.

Written by stewart henderson

February 17, 2018 at 11:32 am

the battle for justice part 3 – is there any way to clear your name?

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A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.

from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014

shit, please don’t tell me the other 24

I’ve argued that it’s pretty well impossible to clear your name, once you’re arrested and charged with a serious crime, due to the nolle prosequi conundrum. And if the charge has to do with a child, you’re unlikely to get work which may involve children, even if no evidence whatsoever has been presented against you, as in my case. But surely there must be some way to clear your name. It can’t be all doom and gloom. Can it?

  1. Approach the former plaintiff

A number of people who know about the case have asked me – what about the boy who accused you? He’s a young man now, maybe he regrets it all and has changed his tune. If he could be prevailed upon to admit it was all a lie..?

To be honest, I have no inclination whatsoever to go looking for him, and it would probably look bad if I did. And if he changed his story after encountering me, or someone acting in my name, how reliable would his new story be? So I’m very reluctant to go down that path, though it might be a last resort.

2. Approach the DPP

More promising, perhaps, would be to go to the DPP. Why did they abandon the case? My guess has always been that the boy’s story was full of contradictions and kept changing, but it’s also possible that, under pressure, he admitted it was all made up. Way back then. As one of my quotes on nolle prosequi, from my previous post, states: Normally the DPP doesn’t give a reason for such a decision. I’m in the process of requesting all the court documents from the case, and maybe a reason for the decision will appear there, but again I’m very doubtful. And approaching the DPP for a reason now would surely be like trying to get blood out of a stone. Still, such a request might be worth a try.

3. Take it up with the ombudsman/human rights commission

Assuming my appeal fails – and it probably will – the DCSI website kindly suggests that I could take the matter up with these other organisations. The obvious problem with this is that it would be a long-term process, and I’m 61 years old, poor, and desperate to be reinstated in the job I love now. So, yes, I do feel it’s a human rights issue, and I would like to take it up, regardless, with the HRC, though I can hardly imagine it being a priority for them. It’s not a serious option for my immediate situation.

4. Appeal to consistency of character

This is the one that screams at me (and at others) as my best defence. We’ve all heard of criminal profiling, where the police or criminologists seek to predict future offending and victims based on past behaviour, but I have no criminal profile. When I was accused by this boy I was forty-nine years old, with no history, and never any accusations, of violence or sexual abuse of any kind. I’d fostered two young boys before this lad, and I fostered another three after him, with no complaints. I’m proud of what I did as a foster carer, and I’m particularly proud of my work as a teacher in recent years, with mostly young adults but a sprinkling of under eighteens in each class – scores  of them overall. And never a hint of a complaint. On the contrary…

And this is what really hurts. When the police arrested me for rape, they had never so much as seen me before. They knew nothing about me, they wouldn’t know me from a bar of soap. They arrested me purely due to the seriousness of the allegation. When the DPP took up the case, passing it from lawyer to lawyer for about a year, none of them knew me from a bar of soap. I was no more than a name. Similarly, when the DCSI began screening me 11 years later, they didn’t know me from a bar of soap. I was just one of the presumably thousands of individuals they had to screen. And they didn’t investigate me, in the way the Dunedin Study studied particular individuals longitudinally – profiling them, essentially. They investigated documents. The documents of the police and the DPP. The documents relating to that one, isolated allegation. Nothing else mattered. Nothing.

So an appeal to consistency of character won’t work when character isn’t being looked at at any point down the line. The DCSI appears to look at documents, not at character. The DPP also looks at documents, police documents, and the police don’t seem to look at anything much. The DCSI has stated that an adverse finding isn’t binding. Employers can make up their own minds. But it’s no surprise that employers, especially large-scale impersonal employers, given the current state of moral concern or panic over sexual abuse, will have a policy of accepting the DCSI finding. Thus in this case, they’ll rely on DCSI documents, which rely on court documents, which rely on police documents, which rely on, in this case, nothing much. I think they call this ‘procedural fairness’. Let’s not let our human, personal biases get in the way of effective decision-making.

The Dunedin longitudinal study, and every other study of its kind, give strong scientific credibility to the insight that the best guide to future behaviour is past behaviour. My life-time record of civilised, tolerant, non-violent and caring behaviour, however, was never taken into account by the police when they asked me to sit down at the Port Adelaide police station, not knowing me from a bar of soap, and promptly charged me with rape. And everything that I suffered over the next year, and everything that the DCSI is putting me through now, results from that event.

I had a chat with my semi-former boss today (I’ve been sort of suspended from work pending the outcome of my appeal). I told her I held little hope of my appeal being successful, because ‘I had nothing more to declare but my innocence’. I didn’t actually say that, just thought of it now, but that was the gist of it. But interestingly I feel more confident now as I go through the processes. That’s the usual way when you’re under this kind of cloud, your thoughts oscillate, often extremely, from pessimism to optimism and back again.

My hope, ridiculous as it is, is that when organisations like DCSI have their noses rubbed into the basic injustice of taking the most extreme, conservative view of nolle prosequi, thus destroying the careers of good people, they will see reason. And they might also be persuaded of the obvious truth that everyone else is taking the most extreme, conservative view of their findings.

I’ll no doubt survive, deprived of my vocation. I’ll go into retirement earlier, I’ll be more pressed for funds. I’ll most certainly miss my students, more than anything. But I won’t give up the fight. I don’t want any of these people to feel complacently that they’re making this world safer for children and young people. In this case, they’re most definitely not. And it’s not good enough to shrug and think that some collateral damage is necessary when you’re doing the ‘right thing’. It isn’t.

Written by stewart henderson

November 14, 2017 at 11:32 am

The battle for justice part 2: the problem with nolle prosequi

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A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.

from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014

Continuing from last post, the case against me was dropped a short while after the arraignment, but not before the police made a visit to my home, the soi-disant scene of the crime. They’d never visited my home or made any contact with me since the arrest, many months before, but it seems the arraignment had spurred them, or forced them, into action.

This was something I’ve never really got. Like many of us I’ve watched my share of crime shows and whodunits. Typically, the arrest comes as the final scene, after weeks and months of painstaking sleuthing. Yet my arrest seemed to have come at the start (though I did have to wait for a while), before any questioning. And then, after the arraignment, the police suddenly showed up at the putative crime-scene to do their sleuthing at last.

I knew what they’d come for, too. Long before, my lawyer had told me some of the details of the boy’s claim. I had apparently raped him in the toilet, after which he’d gotten away and locked himself in the bedroom. I was able to tell the lawyer that none of the bedrooms in my house were lockable, so that part of his story was demonstrably false, so at long last they’d come to check. And then, almost the next day, I was told the case was over.

I don’t remember being sent any paperwork to that effect but I suppose I must have. I was just relieved it was all over, that sanity had prevailed, etc. But this year, more than 11 years on, I came to realise, thanks to a screening process by the DCSI (the South Australian government’s Department of Communities and Social Inclusion), that it wasn’t over, and that it would never be over. This was because of the little matter of ‘Nolle Prosequi’:

The entering of a nolle prosequi by the Director of Public Prosecutions means that he is not pursuing the prosecution at this stage. Theoretically he may pursue the prosecution at a later stage, but this rarely, if ever, happens. Normally the DPP does not give a reason for such a decision, but it is usually based on a problem with the evidence he has assembled. In the course of assembling it, or after it has been assembled in a book of evidence, a problem may arise with a witness or a crucial part of it, that would make it difficult to proceed. Difficulties of this nature usually undermine the whole basis for the trial. Even if new evidence is discovered, the problems with the old evidence remain. If a nolle prosequi is entered, and then registered by the court, the accused is discharged and free to go. He or she enjoys the presumption of innocence that all accused people enjoy until they are convicted of a crime beyond all reasonable doubt. (Carole Coulter, Irish Times, April 2006)

 

Nolle prosequi... is a legal term of art and a Latin legal phrase meaning “be unwilling to pursue”, a phrase amounting to “do not prosecute”. It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor’s decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered. It contrasts with an involuntary dismissal. Legal effect [in the USA]: The entry of a nolle prosequi is not an acquittal, and the principle of double jeopardy therefore does not apply. The defendant may later be re-indicted on the same charge. Effect on future employment [in the USA] Federal agencies, especially the military, view nolle prosequi as an unfavorable judgement. This has the effect of requiring a waiver submission for service, or the outright denial of employment (WIKIPEDIA).

Nolle prosequi was the ‘finding’ in my case.

As indicated in the quotes above, nolle prosequi can be interpreted as anything from ‘presumed innocent’ to ‘still pretty suss’, and it seems any department, any arm of government, is at liberty to interpret it as they wish (and given the current environment, they’re more than likely to err on the side of the child/accuser). But here’s the kicker, as the yanks say. And it’s an extremely important and fundamental kicker for my argument. Once arrested (for sexual abuse or rape, say) nolle prosequi is essentially the best any accused can hope for!! This is the dirty little secret your lawyer is most unlikely to tell you about.

Let me explain. When you go and seek legal aid to defend yourself against a false charge [please, if only for hypothetical reasons, assume the accusation is false], it means you’ve already been arrested, and the DPP has already instituted proceedings against you. And once a prosecution is instituted, your lawyer will try to get it thrown out, i.e nolle prosequi. The other alternative is acquittal – but acquittal can only come after a full criminal trial. I quoted in my last post that an arraignment is the first stage of an 11-stage criminal trial in Australia. That should give an indication of just how humungous a criminal trial actually is – involving lawyers, witnesses and experts for both sides, the presentation of different types of evidence, examinations and cross-examinations, a jury presumably, and all in all a process that will tie up a courtroom for some time, with much expenditure of money and energy. So your lawyer is actually trying her best to make sure you don’t have your day in court. So nolle prosequi is the lawyer’s victory, but if organisations like DCSI interpret nolle prosequi as ‘still pretty suss’, that means you’re stuffed – for the rest of your life! If not longer.

Now, notice the statement from the DPP at the top of this post. It sounds impressive – they won’t go ahead with a case unless they have a reasonable prospect of succeeding (and this would surely mean having sufficient, or at least some, evidence). Now, let me tell you that during the whole 13 or 14 months that my case was ongoing, I was in a state of sleepless agony, and occasional rage, with the mantra ‘no evidence, no evidence’ echoing in my head, and on the day after I heard that my case was dismissed, I took to my computer and typed a terse paragraph to the DPP (yes I’m sometimes capable of terseness), accusing them of incompetence in my case, not only for seeming to pass the buck from lawyer to lawyer, but for going against their prosecution policy as stated on their website, which I quoted back to them (the policy was, I believe, worded a little differently in 2006 from the 2014 version quoted above, and I think then it actually mentioned evidence). Not surprisingly they didn’t respond, but I met my lawyer, purely by accident, a few months later and he told me my letter had caused quite a stir – which thrilled me as throughout the case I always felt like Mr Nobody or The Invisible Man. I asked him why, with no evidence at all, the case had lasted as long as it did. His response was that I was one of the lucky ones. Many people in his experience had gone through this process and been destroyed, based on no more evidence than they had against me. No more than someone’s story.

But I’ve had another insight since taking aim at the DPP all those years ago. Yes, I still think the DPP contravened their own policy by taking on my case, but I was forgetting, in my utmost naivety, the role of the police. Yes, the DPP say they won’t prosecute a case unless they have a reasonable chance of success, but when the police arrest a person and charge him with rape, the DPP obviously don’t know a thing about it. They only find out later, from the police. In other words, the DPP has cases ‘dumped’ on it by the police, and has to make the best of them. Their ‘reasonable prospect of conviction’ is based entirely on the word of the police that they have sufficient evidence. You can see here how a world of tension and acrimony might open up between the police and the DPP.

So it looks as if my anger against the DPP might’ve been misplaced. My anger should have been directed at the police. But of course if I’d written to the police about their lack of evidence, where would it have got me?

 

Written by stewart henderson

November 13, 2017 at 2:53 pm

Posted in argument, work

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