Saturday, March 20, 2010

How I'm feeling...

I know I promised not to write about feelings (see the Yard's mission statement to the right of this post). But as the case of my friend Peter Watts and the guards at the Blue Water Bridge sinks in, feeling seems to be all I'm doing. So while this might be a good time to start telling you about the ChiZine launch at the World Horror Convention in Brighton next Thursday, I've got no stomach for it.

I wasn't at the trial in Michigan, where a jury delivered their conviction Friday morning; I was here in Toronto, in a meeting with my superiors at the paper, cheerfully talking about how the Toronto mayor's race was shaping up. I'd pretty much convinced myself that, based on what I knew about the case and reports I'd gotten about just how well Peter's lawyer Douglas Mullkoff was arguing it, there would be an acquittal.

After all - under cross-examination by Mullkoff, the border guards had conceded that Peter hadn't assaulted anyone; hadn't threatened to assault anyone; and that his aggressive stance was nothing any reasonable person would consider aggressive. The allegations that he had somehow choked border guard Andrew Beaudry while Beaudry was hitting him, were demolished. The only choking going on is mine right now, typing that Beaudry was merely somehow mistaken when he accused Peter of being a strangler.

If I was wondering anything, it was what we'd be eating at the homecoming party.

Didn't work out that way. Because, there is this statute - that essentially criminalizes non-compliance to such a broad degree that asking a question (as Peter did) before complying with an order from a border guard is a felony. In terms of the sentence one might serve - well, Peter might as well have choked Beaudry. It amounts to the same thing.

As Peter explains on his blog:

The press has frequently characterized the charge against me as “assaulting a federal officer”. The alleged (and discredited) “choking” episode has been repeated ad nauseum. Here at the Sarnia Best Western I don’t have the actual statute in front of me but it includes a lengthy grab-bag of actions, things like “assault”, “resist”, “impede”, “threaten”, “obstruct” — hell, “contradict” might be in there for all I know. And under “obstruct” is “failure to comply with a lawful order”, and it’s explicitly stated that violence on the part of the perp is not necessary for a conviction. Basically, everything from asking “Why?” right up to chain-saw attack falls under the same charge. And it’s all a felony.
This shouldn't surprise me - the United States is a foreign country, for all its nearness. Its founders espoused different values from those of the architects of my homeland; those founders' sons and daughters today espouse values utterly alien to my own. That an American state should pass a law that criminalizes the act of questioning - of hesitation - in the face of a physical assault by a representative of their federal government... that might come as a surprise in the particular case. But generally, in the context of American history, it's not so far off the mean that I should be as shocked as I am.

The temptation to fall into anti-Americanism has the pull of gravity right now; the "neighbour to the south" feels to me like the kind of neighbour that returns our tools broken and leers at our daughters. Ask me now if I ever intend to visit the United States, I'd say no. Not again. Ask me if you should, and I'd say: only if you can't avoid it. And if you do go, bring a bagged lunch, a thermos of coffee and only order glasses of water in the restaurants. Keep your at-par dollar working at home.

That's how I'm feeling - but look, I understand it's not productive. I know too many Americans, and love and respect too many Americans, to start thinking about building walls and silly little personal economic sanctions. America has become fearful for its safety since the terrorist attacks of 9/11. Really, it would have far more cause for that fearfulness, were it not for the goodness of so many of its people.

Many of those people did, in fact, contribute to Peter's defense fund, that allowed him to make his case so eloquently - to discredit the lie, that he did anything to deserve the brutal beating he received at the hands of Andrew Beaudry, or that he did anything that might warrant the hell he and those close to him have gone through in its wake. Some jurors even appear have come forward and added nuance to their decision, in singular missives among the many vile comments on newspaper articles and blogs. Like this one, at the Times-Herald, by a commenter claiming to have been on the jury:

proudinjun wrote:
As a member of the jury that convicted Mr. Watts today, I have a few comments to make. The jury's task was not to decide who we liked better. The job of the jury was to decide whether Mr. Watts "obstructed/resisted" the custom officials. Assault was not one of the charges. What it boiled down to was Mr. Watts did not follow the instructions of the customs agents. Period. He was not violent, he was not intimidating, he was not stopping them from searching his car. He did, however, refuse to follow the commands by his non compliance. He's not a bad man by any stretch of the imagination. The customs agents escalted the situation with sarcasm and miscommunication. Unfortunately, we were not asked to convict those agents with a crime, although, in my opinion, they did commit offenses against Mr. Watts. Two wrongs don't make a right, so we had to follow the instructions as set forth to us by the judge.
Or this one, on Peter's blog:

Peter,

I believe your description of the trial and deliberations is more accurate than you could know. As a non-conformist and “libertarian” (who has had some experiences not unlike yours) I was not comfortable with my vote, but felt deep inside that it was consistent with the oath we took as jurors. I believe nearly all the jurors searched for a legitimate reason to vote differently. In the end it came down to the question “Was the law broken?”. While I would much rather have a beer and discussion with you than Officer B. I never the less felt obligated to vote my conscience. I also believe most, if not all, the jurors sincerely hope that you are handled with a great degree of leniency, we, unfortunately have no say in that matter.

They both sound like good-hearted people. My own conscience would have driven me to a different decision than the one they made. Even if it weren't my friend's life in the balance, I like to think I would have asked the judge the question:

If we feel the statute is mis-applied, if we feel that the accused is a victim of a crime and not a perpetrator - and that statute is functioning to mask the real crime - can we without violating our oath deliver a verdict of not guilty even if the accused's actions technically fall within that statute?

But if some of the jurors' values appear to also be mine - I know that my conscience is not theirs. As Peter said in his blog, they deliberated for some time before coming to their decision. They took the matter seriously. That's something.

It doesn't comfort; it doesn't change anything.

But it's something.

15 comments:

moioci said...

As an American (USian?), I find myself very disappointed at the authoritarian state we have tended towards since 9/11. This case is in a way emblematic of this tendency. Had I been a member of this jury, I don't think I would have had too difficult a time arguing that in the aftermath of his malicious treatment by the border guard, Dr. Watts acted reasonably and thus did nothing wrong. This would be less of an affront to justice than the verdict that was returned.

John Stephen Lewis said...

a dull gray weight presses down

silence=death

Anonymous said...

I'm not at all convinced that this has much to do with the chilling effects of 9/11. I once had a disturbing encounter with a U.S. Border control officer while crossing the border from Vancouver (I'm American). This was in 1998. Although I wasn't assaulted, I could easily imagine how it cold have quickly escalated into an assault by these glorified mall cops (no offense to decent, hard-working mall cops). I was polite and forthcoming to the officer in question, yet he acted like a belligerent adolescent. (While looking at my Driver's License he told me that the fact that I was a California resident was one strike against me, two more and I was going to jail). This ordeal lasted over an hour, while he had his cohorts tear my car apart. When he couldn't find any more strikes to use against me, he literally threw my id at me as I was sitting in a chair inside their building. I think that categorizing recent encounters with these types as post 9/11 overzealousness gives them a modicum of respect. As if they were the results of good intentions gone bad. I don't believe this to be the case. I can't help but feel that they're just bullies that need to harass innocent people in order to feel like real men. Men like Peter Watts.

Anonymous said...

What ever happened to Jury Nullification? This is an excellent example. Oh, wait, the judge will throw you in jail if you mention it. Can't let the jury know all its rights, that messes up the system.

S.Duke Ellis said...

I hear you, Anonymous. Blaming the post-9/11 zeal for security at the expense of all else is short-sighted - especially when you consider that the US government (at the federal level at least) has been on an uninterrupted downward trajectory into fascism since Eisenhower retired. Really, the Bush administration simply found a way to do in 8 years what might have taken 20 otherwise.

Eric Halbritter said...

As one of your neighbors to the south, I can attest, through personal interactions, this is not the result of post 9/11 fear and paralysis. No dear friend, this is a result of adolescent bullies growing up and obtaining positions of authority as Customs officials.

During my service as a U.S. Marine, the only force I ever feared were customs and border officials upon returning to the US.

I would rather face an armed terrorist or foreign military power trying to end my life than our customs officials hiding their abusive tactics behind "federal officer" status.

David Nickle said...

Anonymous, Duke, Eric... I agree with you - I've worried about border guards at the U.S. long before September, 2001. Although weirdly, I never had a very bad time with them personally.

But I suspect Peter's case would have played differently if he'd defended a decade ago; I'm given to understand that it was only eight or nine years ago that Michigan broadened its definition of resisting and obstructing to include simple non-compliance or slow compliance.

The jury, in other words, would have not felt such pressure to deliver a conviction.

I don't have the new statute and the old statute in front of me, so I could be wrong about that. I could also be wrong about the fact that post-9/11 fears made it easier to pass such chilling legislation.

I suspect that you are right, though, that the behaviour of the border guards in the first place might not have been so very different.

DenverChuck said...

As a Federal criminal defense lawyer I am not surprised at the outcome. Most Federal criminal statutes are draconian, and nearly all customs and border guards are the dregs of law enforcement. They are people you wouldn't want living next to you or dating your son or daughter. They are government terrorists who are incapable of comprehending the concept of freedom!

Richard said...

As far as I know it is not against the law to vote however you want on a jury. If the two jurors felt that Watts broke the law, but that the border guards were sarcastic and unreasonable and that the law was unfairly applied, they should have voted against convicting him. That's why we have a jury of our peers with judgment instead of a machine who tabulates the results against the laws and convicts.

It's too bad the jury didn't use their common sense, but were also slaves to the instructions given by the judge regardless of what whether justice was done or not.

And I don't care that it is Peter Watts, every time law enforcement even appear to be heavy handed and then these types of intimidating charges are pressed I think you should give the benefit of the doubt to the defendant, because the balance of power is so skewed. Perhaps someday when we hear less stories about abuse of power my opinions will reasonable swing back to a more balanced view. Not today.

Anonymous said...

@David Nickle; I stand corrected. My original post (dated March 2oth) was more of a critique of our border and customs officers, not the jury in question. I should have made that distinction.

Anonymous said...

I also have to agree with Anonymous (3/20 11:03pm) about the arrogant behavior of US customs agents far pre-dating 9/11. I'm a native US citizen and in the early 80s, I worked for a Canadian company. My work took me to Canada frequently--Toronto and Calgary mostly. Canadian customs officers were always extremely professional and businesslike. US customs, on the other hand, were often surly and sadistic, no matter that I was re-entering my own country. On at least one of three trips, I missed my flight connection because a US customs agent (my nickname for them became 'Officer Cerberus') found some reason to delay my routine clearance--it was a smug little game with them. Officer Cerberus would look at my ticket or itinerary to see the departure time, tell me to "sit down over there" and let the clock run until my flight was gone, then bring me back and hand me my papers with no comment.

I was (then) a young engineer in a coat and tie, and these guys, for one short moment, had near absolute power over me. Pretty sad and pathetic. People with these sociopathic tendencies are drawn to jobs that give them carte blanche power over others the way the federal statutes apparently do.

gwenix said...

Sadly, it sounds like the defense lawyer wasn't very good if he allowed the jury to think that a law was broken. Failure to answer "in time" is not the same as "non-compliance", and it is not breaking any laws. Why was the lawyer not pressing that point? Had he given them just an inch on that, it sounds like they'd have acquitted happily.

David Nickle said...

gwenix: Actually, as I understand it Doug Mullkoff was a very good lawyer. He took apart the assault allegations; took apart the prosecution witnesses; emphasized the truth about the nature of Peter's hesitation. The jury did what it did in the face of that - it strictly interpreted a law so broad as to be meaningless.

Because, if the dissenting jurors are to be credited, its members believed they had been ordered to do so - and believed that their duty was to follow that order.

HappyPete said...

There's a reason that juries deliberate behind closed doors. Any jury can nullify a bad law ** simply by refusing to convict. ** No judge will include this in their instructions--in fact they will say the opposite, but it is true. A juror who says that their conscience made them convict someone because a good person found themselves in the cross-hairs of a bad law is confused about the meaning of conscience.

Shame on that jury for not taking a stand against the abuse of police powers.

Val Grimm said...

And frankly, I wonder if it is not as much about the kind of folks who become border guards -- if they become border guards for the same reasons that folks become prison guards here, well, that's part of the problem. But of course, my first impulse is to refer folks to: American Methods: Torture and the Logic of Domination http://www.southendpress.org/2005/items/87530