It's not clear to me whether the mayor, the Chief of Police, and/or the head of the drug unit were lying when they said Clark wasn't an informant.  They may not have known that Clark was providing information to some police officers.  But, if they were going to go out there and deny it so emphatically, they should have made sure.  When Danny Jones started giving his statement yesterday, at first it sounded like he was trying to parse his words:

Desmond Clark was not, was never a sanctioned, paid, continuous, . . .

At this point I was thinking Jones was choosing his words carefully so he could deny Clark was an informant.

. . . any kind of informant for the Charleston Police Department or any law enforcement agency that I am aware of in this area.

Then when he added "any kind of informant," I gave him the benefit of the doubt.  Guess I was being naive.

True, Clark was apparently not a paid informant.

Paid informants are credible enough to be used in court cases, wear a wire or buy drugs for police. But there are others who give useful information to police who are not paid. They can give police good information, but they wouldn't be used in a court case, often because of their long criminal histories.

But he was providing information to the police, and they cut him breaks because of it.  And it looks to me like what caused this situation was that trying to fight gun and drug crime was a higher priority for the police than pursuing abusers.

If you want to read something really depressing, scan through the Gazette's compilation of Desmond Clark's criminal record.  You read incident after incident of Clark abusing Na'lisha Gravely---punching her in the face, punching her in the face again, kicking her in the ribs, hitting her in the head with a handgun, choking her and slamming her to the ground, threatening to kill her, dragging her by the hair and shoving her into a car against her will, choking her, forcing her into a car again, firing a gun into the air, grabbing her by the neck, forcing her to the ground, stabbing her in the arm, punching her in the stomach, and finally, shooting her multiple times and killing her.

And in reading through all of that, you see that he was in jail a little bit here and there, but he always ended up being released on bail, until he was finally sentenced to probation.  Several of the charges against him (not all of them involving Gravely) were dismissed because either the police officer didn't show up to testify or because of delay in issuing an indictment.

What's depressing is that you know in reading what happened to Gravely how it was likely to end.  Reading through Clark's record is like watching a horror movie---it's just violence after violence and you know what's coming at the end of it.  And you know that all of the abuse listed in Clark's criminal record was only a part of what she went through.  She was surely punched, kicked, choked, and who knows what else far more than is reflected in Clark's rap sheet.  And it fucking pisses me off and makes me feel sick.

And Danny Jones should fucking be ashamed of himself for implying that Desmond Clark could have been locked up if only Na'lisha Gravely hadn't been a "reluctant witness."  And whoever wrote this Gazette editorial yesterday should pull his or her head out of his or her ass as well:

The teenage mother evidently was part of the problem, because she had failed to prosecute Desmond Clark, 22, after previous attacks. In fact, she was riding quietly in his vehicle just before the murder and said nothing to a Dunbar officer who stopped them.

One of the magistrates who spoke to the Gazette stated the obvious, sad reality of Gravely's situation:

One of the two magistrates who say police asked for leniency on Clark considered what might have been going through Gravely's mind if she knew Clark was working with police.

"She's probably thinking, 'Hey, you know, if he's working for the police, what happens?' ... If he ever said to her, 'Look I work for police. You file what you want to. I'll be out of jail.' What could she do?" the magistrate asked.

Exactly.  She probably felt helpless.  She's not going to testify against him knowing that the police are cutting him breaks, because if she does, she'll just get beaten and abused even worse.  She was not "part of the problem," and it's pretty fucking insensitive to say that she was.  The Gazette editorial even asked that age-old question:

[W]hy did she keep returning to her barbaric boyfriend?

That question is always asked as if things are just that simple.  Your boyfriend or husband beats you up?  Just leave.  Apparently these two were not even living with each other (it's unclear whether that was ever the case).  You have to be pretty clueless to think that Gravely could have simply broken up with Clark and ended the violence.  How can anyone read the things that he did to her and still think it was as simple as Gravely not "returning to her barbaric boyfriend?"

What would you---Danny Jones and Gazette editorialist---have suggested that Gravely do?  The most dangerous time for a woman who is being abused is when she tries to leave. Men like Clark don't let the objects of their obsession and violence just walk away.  Men like Clark are manipulative and controlling.

This is a guy who tracked her down at her grandmother's house and dragged her out to his car and forced her into it, firing a warning shot.  In another incident, he forced her into his car, shot at her, then drove around for hours until she managed to escape the vehicle.  During a traffic stop, do you think she's going to lean over and say, "Excuse me officer, could you help me?"  She wouldn't be paranoid to think that Clark might just drive off if she did that.  Based on Clark's history of always getting released, why would she think that asking a police officer for help would make her any safer?

And do you think she knew at the time of that traffic stop that Clark might kill her later that day?  I'm guessing that given the amount and severity of the violence she faced, probably every day felt like a day that he might kill her.

I hate the term "domestic battery" or "domestic assault" or even "domestic violence."  Why do we distinguish between a man punching his girlfriend in the face in her house and a man punching some guy in the face out on the street?  Why are there two separate crimes---battery and domestic battery?  They both carry the exact same sentence in West Virginia's criminal code, as do assault and domestic assault.

Domestic violence is not just a personal problem.  It's not just an isolated problem or a family problem. Someone else could easily have ended up injured or dead on Saturday as Clark was chasing after Gravely.  Luckily, that didn't happen, but this guy was obviously a danger not just to Gravely, but to the whole community.

Remember what can happen when police think an incident is "just a domestic dispute." I'm not trying to be sensational by suggesting that the West Side Taco Bell could have turned into a Virginia Tech situation.  I'm suggesting that police and the public need to understand that men who commit violence against their wives and girlfriends are also threats to society at large.  And in this situation, I feel like police didn't prioritize all of those domestic incidents because they were more concerned with catching the really bad guys---the guys with the guns and drugs.  Nevermind the fact that their informant was one of those guys too.

Update:  Desmond Clark's mother was arrested today for battery against Na'lisha Gravely that occurred on the same date and at the same location of Clark's domestic battery charge in May of this year.  Jesus.

Therefore, it is unclear whether magistrates arraigning Clark in May [for domestic battery against Gravely] would have known that he was a convicted felon on probation because they couldn't access his circuit court records via computer.

There's no mention in this article of the possibility that he was an informant, so I'm inclined to think that Mayor Jones' press conference yesterday convinced reporters that their unnamed sources were wrong.

It's appalling to me that this guy wasn't in prison. He is a convicted felon who has committed a few different gun crimes and who has a four- to five-year history of abusing his girlfriend, including shooting her (the bullet grazed her leg), yet the most he was ever sentenced to was two years of probation. And now she's dead.

Most people in Charleston have probably seen this surveillance video from a Taco Bell on the West Side. It shows a woman running into the restaurant and jumping over the counter, followed several seconds later by a man running in and jumping over the counter. You then see all of the people in the restaurant scatter, presumably after hearing Clark fire six shots at his girlfriend, who was hiding in a closet.

Unsurprisingly, Clark has a history of domestic violence charges against his now-deceased girlfriend, Nilisha Gravely. They reportedly had been together for five years, and she accused him of domestic battery in September 2004, which means the abuse must have started not long after they began their relationship, when she was 16 and he was 18.

The guy's got so many domestic violence charges I'm going to list them in bullet form (sorry for the unfortunate pun):

• In February 2005, he broke her nose.*
• In October 2005, he kicked her, dragged her by the hair, and forced her into a car.
• In January 2007, he choked her and pulled her out of her car. He was charged with domestic battery and released on bond.
• Later that month, he tracked her down at her grandmother's house, forced her into his car, and fired a shot into the air. He was charged with two counts of wanton endangerment and two counts of burglary. He was put on home confinement, then he cut off his ankle bracelet.
• In April 2007, he stabbed her with a kitchen knife in her apartment. She left the apartment covered in blood, stumbled up the street, and flagged down the police, but Clark "eluded" them.
• In May 2007, he grabbed her and pushed her into a car. He shot at her, grazing her leg. He drove around for several hours, saying that he'd shoot at police if they tried to apprehend him. She managed to escape. And so did he.
• In June 2007, Clark was arrested and charged with unlawful malicious wounding (a felony) and violating a home confinement order (a misdemeanor). He was released on bond in July 2007 and was apparently put on home confinement again. In October 2007, Clark was removed from home confinement so that he could start a job as a security guard.
• In December 2007, it was Clark who got shot. Police say that forty minutes later, two of Clark's "associates" shot and killed a man on the East End in retaliation.

In January 2008, Clark pleaded guilty to possession of marijuana with intent to distribute, discharging a firearm within 500 feet of a dwelling, battery, and domestic battery as part of a plea deal that dismissed charges of breaking and entering, entering without breaking, brandishing, and two counts of domestic battery. He was sentenced to two years of probation.

The standard for sentencing a person to probation is that the person is "not likely again to commit crime and that the public good does not require that he be fined or imprisoned." I think we can all agree that the idea that Clark was "not likely again to commit crime" does not pass the laugh test.

While on probation in May of this year, Clark was arrested and charged with domestic battery for punching Gravely in the stomach. She filed a domestic violence petition against him and was granted a protective order on May 28th, which prohibited Clark from having contact with her for three months. On July 5th, he killed her.

In addition to abusing his girlfriend, Clark was also accused of battery against a corrections officer and he had other gun and drug charges that were dismissed because police failed to show up to testify. That was apparently an ongoing problem when it came to charges against Clark---the police wouldn't show up to testify against him. According to "sources," it was because he was a confidential informant.

The head of the Metro Drug Unit emphatically denies that Clark was an informant for the drug unit and says that because of his criminal history they would not have used him as an informant if he had asked. But the chief detective for the police department, who also denies using Clark as an informant, says that he wouldn't know whether anyone else was using him as one.

The Chief of Police said: "When I called all three investigation divisions, they all said the same thing: 'He was a target for us.'" If that's true, then why the hell didn't they lock up their "target" after one of his numerous arrests/convictions? Just this past December he was involved at some level in a man's murder, then in January he gets probation?

Mayor Danny Jones called a press conference earlier today to respond to the Gazette article. He held up the paper with the big, front page headline that reads "Was Clark an informant?" and said no, he was not. He also basically blamed Gravely for being a "reluctant witness."

The mayor explained the reason for repeated lack of convictions and short jail stints for Clark was the result of "reluctant witnesses."

"Obviously one (witness) in particular, and that's the saddest part of all," Jones said about Nalisha Gravely. "We did everything we could and police did everything they could to lock him up."

Classy. I don't think they did everything they could, considering the fact that police officers didn't show up to testify.

So for now, I guess it remains a mystery. The mayor and the police seem pretty emphatic, but then again, I wouldn't expect them to reveal Clark's status as an informant if he was one. What I'd really like to know is who those unnamed sources are.

Either way---whether he was an informant or not---the legal system seriously screwed up by not locking this guy up. I know that domestic violence cases can be difficult for prosecutors, since victims are often afraid to testify against their abusers. (Afraid, not reluctant.) But when the police don't even show up to testify, then I'm not buying the claim that they did everything they could. And now a woman is dead because of it, and a two-year-old boy is going to grow up without his mother.

* Please forgive me for dispensing with the "allegedly's."

Telecoms already have immunity under existing FISA laws if they meet one of the following requirements:

(d) Defense.— A good faith reliance on—

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or

(3) a good faith determination that section 2511 (3) or 2511 (2)(i) of this title permitted the conduct complained of;

is a complete defense against any civil or criminal action brought under this chapter or any other law.

So even though some telecoms did not cooperate with the Bush administration -- on the advice of their attorneys who warned that the warrantless wiretapping program was illegal -- the ones who did cooperate now have immunity, regardless of whether or not they knew or should have known that they were aiding and abetting illegal conduct.

But more important than the issue of whether telecoms should be liable is whether or not the Bush administration should be held accountable for its illegal and unconstitutional actions. Sen. Rockefeller claims to believe that President Bush should be held accountable, but the passage of this bill today pretty well seals the deal that the details of this program are not ever going to come to light. Since Congress isn't actually doing anything to hold the administration accountable, the discovery process in the law suits against the telecoms was pretty much the only investigative vehicle left to find out more about the warrantless wiretapping program. (Whether the government and/or telecoms would ultimately have been successful in withholding information based on claims of state secrets is an open question, but now there's not even a chance of them being forced to disclose anything.)

This is from a Washington Post op-ed written by Rockefeller last fall:

Today there is significant debate about whether the underlying program -- the president's warrantless surveillance plan -- was legal or violated constitutional rights. That is an important debate, and those questions must be answered.

[...]

[L]awsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House's year-long push for blanket immunity covering government officials.

To be blunt, I think Rockefeller is full of shit. If he genuinely cared about accountability, he would not have entered into a deal with Cheney to give the administration exactly what it wanted. I'm not sure what constituency Rockefeller thinks he's representing. I didn't see any Americans (let alone any West Virginians) clamoring for telecom immunity. To my eyes, Rockefeller was representing a constituency of one -- himself (see also here).

As for the presidential candidates, John McCain voted for it and Barack Obama voted against. I don't believe Hillary Clinton was present for the vote.

By the way, I highly recommend reading the various links in this post if you aren't up on all the details of how this whole thing unfolded and what it all really means. I didn't want to bog the post down with too much information, so I included tons of links instead.

The second felony stemmed from the hate-filled letter police say McCoy left on the door of his upstairs neighbor in an apartment building on Market Street in Spencer. McCoy was living in an apartment with his mother at the time, police said.

"It was threatening, very threatening," Spencer Police Chief Gary Williams said. "It put the victim at great fear ... When they brought this letter over here, we were just astounded by the content. We jumped on it immediately."

A person familiar with McCoy matched his handwriting with that on the letter sent to his neighbor, Williams said.

The investigation into the letter included interviews and statements from family members, Cole said. These statements eventually led to McCoy's arrest for the cat mutilation, police said.

Spencer police consulted with the state Attorney General's office on filing the hate crime charge, Williams said. The chief said he believed McCoy's was only the second successful prosecution of a hate crime in state history.

The guy pled guilty to the hate crime charge. I'm curious what "consulted with the state Attorney General's office" means exactly.

On Saturday, the Gazette reported that the Attorney General's office had refused to issue a legal opinion to the prosecutor regarding whether or not West Virginia's bias crime statute could apply to the Megan Williams case. Abraham requested the legal opinion in a letter dated September 20th, though this hadn't been reported until now (at least, not to my knowledge). According to the prosecutor, the AG's office initially claimed that state law authorizes the AG to issue legal opinions only to a certain list of state officials, not including county prosecutors. Abraham objected, pointing out (correctly) that state law requires the AG to issue opinions to those listed state officials but does not prohibit the AG from issuing opinions to others.

The prosecutor claims that in a phone call with Fran Hughes, Chief Deputy AG, she told him that the AG couldn't issue the legal opinion because the office lacked the resources to do so and because they didn't want to get involved in this controversial case. Hughes denies saying the latter and claims that it's the prosecutor who doesn't want to make the difficult decision. She stated that the prosecutor is perfectly capable of making that legal determination on his own and shouldn't be passing it off on the AG's office. The prosecutor objected to this, stating that he was still going to make the decision on his own, but he wanted the AG's legal opinion because the court would be required to give it great weight.

After reading the "he said, she said" in Saturday's article, it sounded to me that it was the prosecutor, not the AG, who was trying to avoid potential political fallout in this highly publicized case. It seemed odd to me that the prosecutor would ask the AG's office to interpret the bias crime law and then state that he's still planning to make the decision on his own. I can't believe that the prosecutor would file bias crime charges after receiving a legal opinion from the AG that they aren't applicable in this case, if the AG were to come to such a conclusion. Plus, it seems premature for the prosecutor to seek a legal opinion at this stage. I would think this might be something the prosecutor would do down the road in the event of an appeal. So it did kind of look like the prosecutor was asking the AG to do his job.

The second Gazette article confirmed this perception.

In Sunday's article, the prosecutor clarified that he wanted the AG's legal opinion on whether West Virginia's bias crime statute could be interpreted more broadly than the federal statute. He wasn't seeking a fact-specific application of state law, he wanted a more general interpretation of the scope of the state statute. That makes more sense. The reason stated by federal authorities for not pursuing charges in this case was that the federal bias crime law only applies when the victim was engaging in or attempting to engage in one of the federally protected activities enumerated in the statute. The Logan County prosecutor wanted the AG's opinion on whether or not West Virginia's bias crime statute is similarly restricted, or whether it's broader than the federal statute.

Not to insult the prosecutor's intelligence, but to answer that question all you need to do is read the statute. I've written a detailed explanation of West Virginia's bias crime statute, so I won't rehash the entire thing here, but the argument goes like this:

1. The bias crime statute defines the victim's activity as "the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States." (W.Va. Code 61-6-21(b))
2. To edit that for clarity & simplicity, activities that are protected by the bias crime statute include "the free exercise or enjoyment of any right secured by the laws of the state of West Virginia."
3. One right that is secured to people by West Virginia law is "the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex." (W.Va. Code 61-6-21(a))

True, this interpretation hasn't actually been tested. There's no precedent for it in West Virginia. However, it seems solid enough to me that the prosecutor should feel entirely comfortable bringing the charge. I know there are many states that have similar statutes, so there must be some case law out there on this.

I recently came across a law review article written by someone with much more experience than I have in this area (which is none), who lays out the same interpretation of the state bias crime law. The article is based on a speech given by Paul Sheridan, Director of the Civil Rights Division at the AG's office, as part of a symposium at WVU College of Law entitled "A Look at Brown v. Board of Education in West Virginia: Remembering the Past, Examining the Present, and Preparing for the Future." Not incidentally, it was apparently a conversation with Paul Sheridan that prompted prosecutor Brian Abraham to seek a legal opinion from the Attorney General. (Click here for the full text of Sheridan's article in pdf form.)

But now the AG has gone from not wanting to issue a legal opinion to wanting to take over the entire case. The prosecutor opposes this and doubts that the Attorney General would even have the legal authority to do so. The AG says that the reason he wants to take over the case isn't because he doubts the prosecutor's abilities. It's because, he says, he wants to "help insulate lawyers from the controversy it has kicked up in Logan County." The AG said:

If this case is problematic, even inflammatory, particularly at the local level, we would be willing [to take over] if it would remove the case from the local concern. ... It’s not good for people to operate under the pressure of being put in a corner.

Given the fact that the interpretation of West Virginia's bias crime statute doesn't seem like such a close call, I suspect that Fran Hughes is correct -- the prosecutor is feeling political pressure and doesn't want the decision of whether to file the charges to rest entirely on his shoulders. It's not that he can't interpret the statute himself, he'd just prefer it if the AG's office had his back on this one. The AG is offering to take over the case in order to alleviate that political pressure, and I think perhaps justice for Megan Williams and the people of West Virginia would be better served if that happened. Either that, or the prosecutor could just grow a pair (to be blunt about it).

* I'm no longer using the term "hate crime," which I used in prior posts. "Bias crime" more accurately describes the statutory definition of the crime and it heads off the facile argument made by the intellectually incurious that "all crimes are hate crimes" (not that they'll stop making it).

After reading this additional information, it looks like what we know so far about this crime is just the tip of the depraved iceberg. The Gazette reported today that authorities now believe Megan Williams was at the Brewsters' trailer in Logan County for more than five weeks -- from August 2nd through September 8th. On August 2nd, Bobby Brewster was released from jail after being charged with domestic battery against Megan Williams, for which he was arrested on July 18th. Williams was initially at the Brewsters' home voluntarily, but at some point during those five weeks, they put her in a shed in their yard and told her that if she tried to leave they would beat her and set the shed on fire. She was in the shed for a period of days.

This is based on information from the victim and a confession made by Frankie Brewster. Brewster also told the police that Danny Combs raped Williams in the bathroom of the trailer, so the violence against her started before she was in the shed. When the police found Williams, she was in the trailer, not the shed. So at this point, who the hell knows what the total sequence of events was.

This is all so sickening. New charges were added yesterday, and now all six of them are charged with kidnapping and 1st degree sexual assault. Just looking at the sheer number of counts that these six people are charged with gives you a glimpse of what Williams went through:

• 33 counts of battery
• 8 counts of 1st degree sexual assault (a.k.a. rape)
• 6 counts of kidnapping
• 4 counts of malicious wounding
• 2 counts of assault during the commission of a felony

So it now appears that what these people did to Williams may have been retaliation for her turning Bobby Brewster in to police for committing domestic battery against her. At least, maybe that's what instigated it. That's what's causing me to believe that this may not have been a hate crime.

There was a new detail that supports the idea that it was at least partly racially motivated -- Bobby Brewster told his mother that if Williams tried to leave he would put a bag over her head and hang her from a tree. Can't miss the allusion there.

West Virginia's hate crime statute is codified at W. Va. Code §61-6-21 and is entitled "Prohibiting violations of an individual's civil rights; penalties." Enacted in 1987, this statute did a few things.

First, it declared that:

All persons within the boundaries of the state of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.

Second, it created a new crime with a maximum penalty of a $5,000 fine and/or 10 years in prison:

If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States, because of such other person's race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.

Third, it created a new aggravating circumstance that can be considered at sentencing for other crimes:

The fact that a person committed a felony or misdemeanor, or attempted to commit a felony, because of the victim's race, color, religion, ancestry, national origin, political affiliation or sex, shall be considered a circumstance in aggravation of any crime in imposing sentence.

Various factors go into the decision of what sentence to impose when someone is convicted of a crime. Some factors might lower the sentence and others might increase it. This law established that when a judge or jury sentences someone for a crime, the sentence will be increased if the crime was committed because of the victim's race, color, religion, ancestry, national origin, political affiliation, or sex. So, even if the prosecutor ultimately decides not to bring hate crime charges in the Megan Williams case, the issue of racial bias will likely come up at sentencing, assuming they are convicted of some or all of the charges they're facing.

To decide whether or not to charge the six defendants under the hate crime statute, the prosecutor will look at the elements of the crime, which can be broken down as follows:

1. willful use of force or threat of force
2. that attempts to or does injure, intimidate, interfere with, oppress, or threaten a person's free exercise or enjoyment of a secured right or privilege
3. motivated by the person's race, color, religion, ancestry, national origin, political affiliation, or sex

The first element is straightforward and is clearly present in the case of Megan Williams.

The second element requires that the force or threat of force was used in an attempt to prevent someone from exercising a right or privilege guaranteed to them by state law, federal law, the West Virginia Constitution, or the U.S. Constitution. This element is simple to meet, because the hate crime statute itself is a state law that guarantees people the right to be free from violence or threats of violence because of their race, color, religion, ancestry, national origin, political affiliation, or sex.

The third element is the bias element. Nothing in the statute indicates that the crime must be solely motivated by bias or even primarily motivated by bias, just that the crime was committed against that person "because of" one of the listed characteristics. (Note that sexual orientation is not included in that list.)

Were the crimes against Megan Williams motivated at least in part by her race? In my opinion, there's plenty of evidence from which a jury could conclude that yes, what those six people did to Williams was done at least in part because of her race. According to Williams, they said the word n*gger each time they stabbed her and they also said "This is what we do to n*ggers around here." And that's just what we in the public know at this point. She was held captive for over a week, and I'd say it's highly likely that there were lots of other highly offensive, race-based insults hurled at her during that time. At the press conference last week, Megan's mother said that Megan had not told her the details of everything that had happened to her. I can't imagine the trauma of having to relive such a terrifying experience over and over in my mind.

The other piece of evidence that suggests to me that this was racially motivated is the brutal and severe nature of the crime. She was held captive. She was forced to do humiliating and demeaning things. They treated her like an animal. Would they have done these kinds of things to a white person? I don't know, but the fact is that they did these thing to a black woman and repeatedly called her a n*igger while doing it. Yes, these six people have a long rap sheet that includes many instances of violence, but none of them are of the same nature as this crime.

Last Friday, the NAACP, the Southern Christian Leadership Conference, and church officials met with Logan County Prosecutor Brian Abraham to discuss the charges against the six people in custody. They've come out to say that they support the prosecutor and are confident that he is conducting a thorough investigation. I haven't heard anything more from the victim or her family about this. Today, the AP reports that more charges are going to be filed in this case, but not hate crime charges. The new charges are expected to be additional kidnapping and sexual assault charges. Not all six were charged with those crimes initially.

The state prosecutor has said that the investigation is still underway and that new charges, including hate crime charges, could be filed. Logan County Prosecutor Brian Abraham said they are initially focusing on the charges that carry the stiffest penalties -- kidnapping, sexual assault, and malicious wounding.

At the press conference, Reverend Emanuel Heyliger made a compelling argument for filing hate crime charges. As I wrote yesterday, the purpose of a hate crime statute is to make a clear expression of community disapproval of crimes that target people because of things like their race, gender, religion, or sexual orientation (though West Virginia's hate crime law doesn't apply to sexual orientation). Reverend Heyliger made this point well (this is my transcription, which I edited in a couple places for clarity):

The family is aghast and totally devastated by the findings of the local prosecutor that this barbaric, heinous, despicable crime is not one where racial hatred has [permeated] the very core of this evil and sick treatment meted out to this young woman of African-American descent. You have to call it what it is.

There are three pastors here and they each have heard from the victim's own testimony, own lips, about the racial invectives that were used while they were [committing] the brutal acts that were done to this young lady. There can be no backsliding at this time. The days of judicial apartheid are behind us. We cannot -- with the world watching with bated breath to see justice in action -- fumble in this opportunity to send a clear and unmistakable signal that we as a society will not and cannot condone such reprehensible conduct.

Mr. Logan Prosecutor, we are urging you to reconsider your findings regardless of who submitted -- who gave you advice -- and if you are unwilling or unable, we are calling on the Justice Department to intervene immediately and take over this case. We are not silent and we shall never be silent until there is full justice for Megan Williams, because thundering in the prodigious hills of West Virginia and sloping down the mountains to the valleys of our beautiful state, the words of the Prophet Amos are still true: "Let justice roll down like a mighty flood and over the land and the seas."

It's true that these people already face the possibility of life in prison based on the charges that have been filed. But what's the point of having a hate crime statute if you're not going to use it? The maximum penalty under WV's hate crime law is ten years, so does that mean a prosecutor would never charge someone with a hate crime if they were already charged with a crime that carries a stiffer penalty? The purpose of charging someone with a hate crime isn't just the penalty imposed -- it has symbolic value.

In our criminal justice system, it's very common for people to be charged with multiple crimes that carry sentences of varying lengths, even when one or more of those crimes already carries a life sentence. Courts sometimes impose consecutive life sentences, which is merely symbolic -- a person can't actually serve more than one life sentence. But courts do it because the community wants to impose a punishment for every act a person commits and every victim he harms. (There are practical reasons to do it too -- if a conviction is overturned or a sentence is reduced on appeal, the other convictions and sentences are still in place.)

In the past couple of days, I have heard various reasons that hate crime charges may not be appropriate in this case:

• She apparently knew at least one of the six people before this crime occurred.
• She went of her own free will to the mobile home where she was held captive.
• The defendants already face life in prison.

I don't find any of those reasons compelling. I've covered the third one already. As for the others, the fact that the victim knows the perpetrator does not negate the possibility that it's a hate crime. I can see how it might be a factor that a prosecutor would consider in determining whether to file hate crime charges, but it alone doesn't rule out the possibility. Whether she went to the mobile home of her own free will or not is irrelevant. If a gay man meets a guy in a bar, then goes home with him of his own free will, does that mean it's not a hate crime if he gets brutally beaten up by the guy because he's gay? From the reports I've read and heard, it sounds like she was lured there specifically so these people could do what they did to her.

Finally, I'll note a question that was asked during the press conference that really rubbed me the wrong way. I have no idea who asked it (I do know it wasn't Anna Sale from WV public radio, because I heard her asking other questions). Someone brought up reports that friends and/or neighbors of Megan Williams say she is perhaps a little too trusting. The reporter asked Megan's parents whether she has a history of "making some poor choices." What the hell? Sure, let's just pile some blame and guilt on this woman and her parents. Her parents were obviously still very shaken about this whole thing, and her mother said Megan wakes up in the middle of the night yelling out to make sure her mother is still there. I think that reporter should have just kept that question about poor choices to herself. Sheesh.

I feel like I should write about this horrific story that is putting West Virginia in the national spotlight, but I'm not sure what to say. I think I'd like to just get the story out there for anyone who hasn't heard about it yet.

It's a particularly brutal story, and not just because of the details of what happened to the victim, though that is of course the most awful part. Megan Williams, a 20-year-old mentally challenged black woman from Charleston, was held captive in a shed for a week in Big Creek, WV (about an hour southwest of Charleston) and was raped, beaten, stabbed, choked, forced to eat animal feces, and tortured in various other ways, until police received an anonymous tip and found her. Six people, all white, were arrested and charged with sexual assault, kidnapping, malicious wounding, battery, and lying to the police, among other charges. The group of six includes a mother and her son and another mother and her daughter, plus two other men.

The case is being investigated as a possible hate crime under state law. (Here's a link to West Virginia's hate crime statute.) The perpetrators reportedly called Williams a n*gger while stabbing her and told her: "This is what we do to n*iggers around here." Also, the F.B.I. is investigating the incident for possible civil rights violations.

Based on subsequent reports, it seems that they should be charged with attempted murder as well. The magistrate who arraigned all six of them said that one of them, Frankie Brewster, told him that they had planned to take the woman to East Lynn Lake (about 30 miles west of Big Creek) and kill her. The magistrate said she just blurted it out at her arraignment. The things they were doing to Williams in that shed were certainly things that could have ended up killing her.

The fact that there were so many people involved in the crime is pretty stunning. In addition to the six people in custody, initial reports said that two people whom Williams knew had driven her to the location where she was held captive and tortured and that police were still looking for the two people. Other reports say it was one woman who drove her there. So it's possible that up to eight people were involved.

According to the Logan County Prosecutor, Williams knew at least one of her captors and had been to their home on at least one prior occasion. This depraved group of people was well known to people in the area and to the police. The Associated Press reports that since 1991, these six people have accumulated 108 criminal charges among them, including first degree murder and lots of domestic violence charges. Two of them were indicted earlier this year for assaulting and robbing an 84-year-old woman in her home. (Those charges were dropped because the victim could not be located.)

It's all very sickening, and like I said, I'm not sure what to even say or why to even blog about it; I just want to make people aware of it if they aren't already. People need to be reminded that asinine statements that racism is dead are delusional (and racist themselves). If you need another example, read about Jena High School.

People also need to be reminded of why hate crime laws are a good thing. People who oppose hate crime laws will often say: Aren't all violent crimes hate crimes? David Neiwert has written a lot about this topic, and this post contains a great analysis and explanation of what makes hate crimes different:

[H]ate crimes have the fully intended effect of driving away and deterring the presence of any kind of hated minority -- racial, religious, or sexual. They are essentially acts of terrorism directed at entire communities of people, and they are message crimes: "Keep out."

Rural dwellers' dread of the dark colors of the inner city is something of a cliche, one based nonetheless on reality. What is less observed, however, is the common dread held by many minorities for America's more rural spaces. Black people fear stepping foot in Idaho because of the presence of the Aryan Nations in the state's Panhandle. Gays and lesbians view driving through places like Wyoming and Montana with a palpable anxiety.

If you get out a map of the country and put yourself in the shoes of a person of color or another sexual persuasion, and start looking at the places you would feel safe visiting, you'll suddenly realize that this can be a very small country indeed for people who are not white heterosexuals. This is what Yale hate-crimes expert Donald Green means when he says that hate crimes annually create a "massive dead-weight loss of freedom" for Americans.

Hate crime laws are a way for society to send a message of deterrence:

The vast majority of hate-crime perpetrators, as I explain in Death on the Fourth of July, believe fully that they are committing these crimes with the unspoken approval of their respective community -- that they are merely acting on its real desires. This (combined with a high incidence of narcissistic/antisocial personality disorders) lends itself to another common trait of hate criminals: they rarely believe they've done anything wrong. And it's important to note that these perps consistently held these views well before they ever acted upon them.

Thus, high-profile and widely sanctioned expressions of community disapproval of these crimes play an essential role in discouraging further such acts. They inform any would-be hate criminals that, contrary to their preconceived notions, the community at large clearly does not approve of these kinds of acts, and rather than being community heroes, they will be pariahs.

Some food for thought.

[Note: The image at the top of this post is a map of hate groups in West Virginia, created by the Southern Poverty Law Center.]

I appreciate Andrew's optimism (honestly, I do), but I'm not sure an $80,000 settlement will make public officials think twice about anything. But I guess after seven years of a Bush presidency, man, do peanuts taste good.

Go, Andrew! Best of luck in Connecticut.

UPDATE: Via Pam at Pandagon, here's a link to the heavily redacted Presidential Advance Manual (pdf), which describes in detail how to deal with demonstrators -- firstly, how to prevent them from attending events at all, and lastly, how to get rid of them if they do show up. As it turns out, Bush's Advance Team didn't follow its own manual in "dealing with" Nicole and Jeffrey Rank at President Bush's July 4, 2004 visit to Charleston.

The manual clearly states that the roll of the Secret Service is limited to identifying people who may be a physical threat to the president.

If the demonstrators appear to be a security threat notify the Secret Service immediately. If demonstrators appear likely to cause only a political disruption, it is the Advance person's responsibility to take appropriate action. Rally squads should be dispatched to surround and drown out demonstrators immediately.

"Rally squads" are small groups of volunteers (e.g., "college/young Republican organizations, local athletic teams, and fraternities/sororities," the manual states) who basically run defense against demonstrators by holding up signs to block them or chanting louder than the demonstrators are.

The manual also clearly states:

As a last resort, security should remove the demonstrators from the event site.

That's not how Team Bush responded to the Ranks. The Ranks were merely standing there among the crowd wearing t-shirts with anti-Bush slogans. They had no signs, they weren't chanting, there's no way anyone could have thought they might be a security threat. More than three years have passed since this happened, so I may not have every detail exactly correct, but I blogged about it quite a bit at the time and the way I remember it happening is that when the Ranks were spotted in their anti-Bush t-shirts, they were asked to leave the main event area and go to the designated "free speech zone," a roped-off area away from the main site. When they refused to move, the local police handcuffed them, removed them, and cited them for trespassing.

On the day the Ranks appeared in court to face the trespassing charges, the prosecutor dismissed the charges. The police said that they had been acting at the direction of the Secret Service and they, along with Mayor Danny Jones, issued an apology to the Ranks. Getting an apology from the police is no small thing -- we all know how reluctant police are to admit wrongdoing.

Finally, a fun fact: The Ranks were from Texas, but they were in West Virginia in 2004 because Nicole Rank was working for FEMA, helping out with some major flood damage in the state. After the t-shirt incident, she was told by FEMA that she was "no longer needed in West Virginia." They effectively fired her.

False Statement, 18 U.S.C. §1001(a)(2)

Average prison sentence: 11.82 months

Obstruction of Justice, 18 U.S.C. §1503

Average prison sentence: 46.33 months

Perjury, 18 U.S.C. §1623

Average prison sentence: 28.50 months

Again, Libby was sentenced to 30 months for his four felony convictions. Looks like his sentence was actually on the light side.

I have to wonder whether these guys have been asleep for the past six years. Since when does the Bush administration care about rules?

Libby definitely doesn't meet the eligibility requirements in the DOJ guidelines. He'd have to wait until five years after he is convicted or released from confinement, whichever is later, before he could petition for a pardon. He'd also have to have exhausted all other legal remedies (i.e. appeals) before he could seek a pardon. Libby could still be in the midst of his appeal when Bush's presidency ends, and he certainly will not have finished out whatever sentence he receives (let alone be five years past it).

I don't think I need to list every example of the Bush administration's disregard for the law, but for starters, how about their NSA warrantless wiretapping program? Two Oregon lawyers now have the distinction of being the first Americans with documented proof that the government listened in on their phone calls without first obtaining a FISA warrant. As a poetic example of the Bush administration's incompetence working in America's favor for once, the Treasury Dept. inadvertently turned over a top secret log of the lawyers' phone conversations that had been compiled via government eavesdropping.

When the Bush administration has shown a casual contempt for the Constitution, what makes Isikoff and Hosenball think that Bush feels bound by rules he's not even required to follow?

§ 1.11 Advisory nature of regulations.The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.

President Bush is notoriously unsympathetic toward convicted criminals who are seeking pardons, so my hunch is that his publicly expressed desire to stick to the guidelines is just a convenient excuse to avoid getting into any discussions about specific cases. I don't think he just selectively has a special reverence for this set of advisory guidelines over others, like that pesky 4th Amendment. Obviously, who knows if he'll pardon Libby. If I had to put money on it, though, I'd guess that he'll pardon him right before leaving office. It would be one last "fuck you" to the American public.

Okay, let me back up. Yes, I was looking up chords for a Britney Spears song. I've been practicing an acoustic rendition of "Hit Me Baby One More Time" that I happen to think kicks some serious ass, but go ahead and sneer if you don't share my appreciation for ironic cover songs. I can take it.

When I read the on-screen message at OLGA, my guess was that they must have gotten a cease & desist letter from the RIAA or something. Well, today on BoingBoing I read that another guitar tab site has posted a more detailed explanation of the "legal action" that has been taken against them. At Guitar Tab Universe, they put up a message on July 17th that reads in part:

The company which owns this website has been indirectly threatened (via our ISP) with legal action by the National Music Publishers' Association (NMPA) as well as the Music Publishers' Association (MPA) on the basis that sharing tablature constitutes copyright infringement. At what point does describing how one plays a song on guitar become an issue of copyright infringment? This website, among other things, helps users teach eachother how they play guitar parts for many different songs. This is the way music teachers have behaved since the first music was ever created. The difference here is that the information is shared by way of a new technology: the Internet.

When you are jamming with a friend and you show him/her the chords for a song you heard on the radio, is that copyright infringement? What about if you helped him/her remember the chord progression or riff by writing it down on, say, a napkin... infringement? If he/she calls you later that night on the phone or e-mails you and you respond via one of those methods, are you infringing? I don't know... but I would really like to know. If anyone has information on this, please email support@guitartabs.cc.

To me, this just seems stupid, because most of the tablature that you find on sites like OLGA and Guitar Tab Universe is the result of people sitting around listening to songs and fooling around on their guitars until they figure out what the chords are. Then they post them online for the benefit of people like me, who don't have the guitar skills or the desire to figure that stuff out themselves. How does this violate anyone's copyright? I know that it would be copyright infringement if someone photocopied pages from a published book of guitar tabs and posted them online, but if a person figures out the chords herself and shares them online, how is that copyright infringement? And how would a court or the owner of one of these sites distinguish between a tab that somebody figured out on her own and one that somebody copied down from a book?

Most of the tabs online are wrong anyway. You have to wade through a bunch of incorrect tabs until you find one that sounds accurate (at least at the sites I use). Sometimes I can't find one that sounds exactly right, so I just pick the one that sounds closest then tweak it on my own until it sounds good to me. Once again -- how could this be copyright infringement?

Also, there are lots of songs that have the same chord progressions. If someone owns the rights to a song, do they own the rights to the particular arrangement of chords that make up the song? That doesn't seem right. And how does it violate anyone's ownership rights if someone online posts the tab for a song and I sit at home and play it for nobody but the spiders in the corner of the room?

Despite my occupation, I don't actually feel like doing the research on these questions (I never was interested in intellectual property law), so if anyone actually wants to attempt a legal analysis in the comments, please have at it. This just doesn't feel like copyright infringement to me. (Yeah, that kind of argument doesn't work in court, but I can freely make such arguments on my blog. Nyah.)

Guitar Tab Universe has a link at the end of its message to MuSATO (Music Student and Teacher Organization), which was formed to "[fight] for the freedom to fairly use tablature in online education." Which reminds me, isn't there an exception in copyright law for materials that are used for educational purposes only? God, I'm being a lazy lawyer today. I'm just pissed that the simple pleasure of sitting around my living room trying to learn new songs has been seriously compromised. Fuckers.

Amid a growing national controversy about the gesture U.S. Supreme Court Justice Antonin Scalia made Sunday at the Cathedral of the Holy Cross, the freelance photographer who captured the moment has come forward with the picture.

Fat Tony made the obscene gesture to punctuate this statement: "To my critics, I say, 'Vaffanculo!'" Literally translated, the Italian obscenity means: "Go do it in the ass!"

So does he take back that dissent?

Check out Saddam's glasses. Maybe all those years he spent terrorizing the Iraqi people, he was just doing it ironically.

Sandra Day O'Connor speaks out about certain Republicans' attacks on an independent judiciary.

This week, Utah lawmakers voted down an exception to the proposed parental consent and notification law that would have allowed victims of incest to obtain abortions without telling their parents. It was a narrow exception - only applicable in cases where a girl's father is also the father of the unborn baby.

An article in the Salt Lake Tribune says: "Conservative senators said the legislation is a test of their morals." I'll say. And they failed miserably.

"Abortion isn't about women's rights. The rights they had were when they made the decision to have sex," [Republican Senator Chris] Buttars said. "This is the consequences. The consequence is they should have to talk to their parents."

"[T]he decision to have sex"!?! Um, the decision of a girl to have sex with her father? Are you fucking kidding me? Sadly, no. For sick fucks like this, the issue isn't about women's rights, it's about their extremist belief that zygotes have souls or some shit. Even worse, in this instance we're not even talking about women, we're talking about girls. Children. Children who have been raped and impregnated by their fathers. I don't know how often that happens in Utah, but even if it happens only once a decade the law is beyond morally repugnant.

"I'm not sure we should run away from the morals we have," he said.

Actually, if these are your morals, I'm quite sure that's exactly what you should do. Also, pray for your own soul, because if there is a hell, you're surely going there.

Do you love your job?

Do you find it difficult to talk about things that are not depositions, trials, billable hours, the partners at your firm, CLE credits, briefs, and motions?

Do you find it uncomfortable to talk to people who are not lawyers?

Do you think that being a lawyer makes you more special than other people?

Are you looking for love with someone who shares all of the same special lawyerly qualities that you possess?

Have you already banged all of your available coworkers?

Have you noticed that you can walk into any bar in town, throw a dart, and be guaranteed to hit a lawyer, but one that you've probably already banged?

Then Lawyers in Love is just the service for you!

Please sign up today and stop clogging up all of the bars and boring the rest of us to tears with your elitist, self-aggrandizing bullshit conversation. Oh, and you can WIN great prizes too!

Just a thought to throw out there for all you worried about abortion and contraception in South Dakota: What about abstinence? It is not as if there are not other choices

...Don Surber either:

1. has a couple of dozen kids,
2. has a vasectomy,*
3. is abstaining from sex with his wife,
4. is a typical right-wing hypocrite.

You decide. (Scroll down to see him get smacked around a little by the other commenters.)

* My sincere apologies for making you think about Don Surber’s penis.

Sorry, alleged criminal. But seriously, what are these people so happy about? Apparently, getting indicted for felonies is all just fun & games. Maybe I should try it sometime. My mood could use a little boost.

(By the way, Patrick Fitzgerald's official DOJ web site has today's press release and Libby's indictment, if you need a good bedtime story tonight.)

Update: As pointed out in the comments, the lecture's archived (same link), so now you (and I) can watch it whenever you want.

Clement responded by saying that there is no contradiction between these two positions, because in this Oregon case, the U.S. is not arguing against physician-assisted suicide in general, just physician-assisted suicide that is carried out by administering medications covered by the Controlled Substances Act.

So, if I'm following the argument correctly, Clement is saying that the Attorney General wouldn't quibble with Oregon's death with dignity law if the patients were prescribed one of these . . .

. . . since rope is not a controlled substance. Unless, of course, the rope is made of hemp. Yeah, this is all really starting to make sense to me.

Former Attorney General Ashcroft's reasoning in intiating this case was that "hastening someone's death is an improper use of medication and violates federal drug laws." Of course, it's fairly obvious that the real motive behind this federal challenge of a state law that was twice approved by the voters of Oregon is not enforcement of the Controlled Substances Act, but rather a moral/religious belief that ending one's own life to avoid a more prolonged and painful death from a terminal illness is simply wrong.

The Oregon statute sets out a very careful procedure for obtaining life-ending medication and contains many safeguards. The patient must make an oral and a written request that are spaced at least fifteen days apart. Two physicians must agree that the patient has a terminal illness, will die in six months or less, and is capable of communicating and making health care decisions. Only the patient can administer the medication to himself.

I simply cannot understand the mentality of the "right to life" set. Death is a part of life, whether the religious right likes it or not. What's their problem with death anyway? Isn't that when they finally get to leave this earth and go to heaven to be with their creator? Shouldn't they be looking forward to it? And why must they meddle in other people's life and death decisions?

If people who meet all of the requirements in the Oregon law want to obtain life-ending medication so that they can choose the time and manner of their deaths, who is the federal government to tell them that this is wrong? Without the law, they could choose to overdose on some medication in their possession or simply put a bullet in their heads. But that's where the "with dignity" part comes in. If they can obtain a medication that will allow them to safely and effectively end their lives in a peaceful manner, why should they be denied this choice?

In 2004, 60 Oregonians obtained prescriptions under this law. 35 of them chose to end their lives by taking the medication. Of the 25 people who did not take the medication, 13 of them died naturally from their illnesses, and 12 of them were still alive by the end of 2004. Based on statistics from previous years, some of these 12 people surely took the medication in 2005, while others died naturally. What these numbers show is that the option of obtaining this medication is in many cases a comfort, an option that some people don't end up choosing, but feel better knowing is there.

Yesterday was the first day of the 2005 term at the Supreme Court, and Dahlia Lithwick was on the scene to observe the new Chief Justice. She gets right to the most important detail first:

Since you're dying to know: John Roberts is not wearing the gold stripes that William H. Rehnquist added to his black robe several years ago.

Now if only we could do something about those white doily-looking things that the female members of the court insist on wearing. I've got my fingers crossed that, if confirmed, Harriet Miers will opt for something with a little color - a feather boa perhaps? She's clearly into accessories.