Nico Johnson Update- Not Guilty!

Photo credit: Jay Hare, Dothan Eagle

Its not in the online version of the Andalusia Star News, but the paper has a story today stating Nico was found innocent of the harassment charges placed against him earlier this month.  My earlier complaint was the Star News was silent on this matter, potentially harming Nico, but now they have spoken.

I spoke to one of the local football guys about Nico last week and he stated the charges were without merit, a big misunderstanding.  He did say the charges caused Nico to speed up his plans to go to Tuscaloosa and attend summer school and to get out of Andalusia and get under the umbrella of the Tide’s coaching staff and avoid anymore small town ya-ya stuff.

Interestingly enough in the paper, the last paragraph was a quote from Nico saying he was looking forward to being in summer school in Tuscaloosa.  Smart move.  Good kid, good family, bright future.

Well, this didn’t take long, Birmingham Man Sues Police

From the AP:

MONTGOMERY, Ala. (AP) — A man whose beating by five Birmingham police officers was caught on a dashboard video is suing the fired officers, the police chief and the city, saying he suffered severe and permanent injuries.

On Jan. 23, 2008, police chased the 38-year-old Warren, ramming his car to stop him and running it off the road. Warren was ejected and was apparently unconscious when officers began kicking him and beating him with a billy club and their fists.

Gayle Gear, who represents the officers, said they are upstanding servicemen and will file for qualified immunity from being sued. Gear said she doesn’t expect the case to go before a jury for years, if ever.

“It’s not unusual for a city to be sued and its officers to be sued,” she said. “There’s lots of lawsuits against various municipalities. We defend them and as a general rule, we prevail.”

For anybody living on Mars the past couple of days, the “Birmingham Beatdown:”

The problem Mr. Warren faces is police immunity and Ms. Gear is correct in many respects.  These are very difficult lawsuits and very difficult to win.  Mr. Warren being in prision doesn’t help either.

However, beating an unconscious man should trigger liability in this case.  Ms. Gear’s comment about this taking years could rule the day, especially if that is the defense strategy.

Weird Story One: Four Bodies Left in Funeral Home

Photo Credit: Stephanie Dowell/Post-Tribune

From the Associated Press:

4 bodies left behind in vacant Ind. funeral home

GARY, Ind. (AP) — Church leaders who bought a defunct Indiana funeral home in a tax sale have stumbled upon four bodies that had been left behind in the vacant building.

Lake County Coroner David J. Pastrick calls the situation in the former Serenity Gardens Funeral Home in Gary “unbelievable.”

Leaders of the Northlake Church of Christ called authorities after finding a body bag on a table Sunday.

Pastrick and his staff found one body in the bag, then another in a burial box and finally two more in caskets.

None has been identified.

Pastrick says the bodies may have been there since 2006, when the funeral home’s business license was revoked after several people filed complaints.

Gary police and state agencies are investigating.

From the Post Tribune:

GARY — Four bodies in a funeral home isn’t unusual.

Four unidentified bodies left behind in a vacant funeral home is “unbelievable.”

That’s what the Rev. Reginald Burrell thought Sunday when he and deacons from Northlake Church of Christ went to visit their newly purchased building.

“What in the world is a body still doing in this building?” Burrell thought when he saw a body bag on a table inside the former Serenity Gardens Funeral Home, 934 E. 21st Ave.

He notified Lake County Coroner David J. Pastrick, who arrived Tuesday morning with a crew to investigate the scene.

They found four bodies, including one in the bag, one in a corrugated burial box and two in caskets.

Pastrick believes they could have been there since 2006, when the Indiana State Board of Funeral and Cemetery Services revoked the business license for Serenity owner Darryl Cammack.

“They are unidentifiable,” Pastrick said of the remains.

Cammack, who lost his funeral home license in Illinois in 2003, had been sanctioned by the Indiana board in 2005 after at least eight customers filed complaints against him.

“That building has been vacant since I started coming over to that church in Gary in 2005,” Burrell said.

His church bought the building at a tax sale and intends to renovate it.

“We have lots of plans and goals we want to pursue,” Burrell said. The church now is located next door to their proposed new site.

Gary police are working with state agencies in the investigation.

Lake County Commissioner Roosevelt Allen, who was chairman of the state board in 2005, said Cammack could be charged with breaking several laws.

Pastrick said he doesn’t know the origin of the bodies, but believes if the deceased were local, he would have been contacted by relatives about a delay in burial.

“I can’t even imagine a funeral director doing something like this. This is my field. It’s unbelievable,” Pastrick said.

Why David Beats Goliath

Great, super, article from The New Yorker by Malcolm Gladwell.

quote:

David’s victory over Goliath, in the Biblical account, is held to be an anomaly. It was not. Davids win all the time. The political scientist Ivan Arreguín-Toft recently looked at every war fought in the past two hundred years between strong and weak combatants. The Goliaths, he found, won in 71.5 per cent of the cases. That is a remarkable fact. Arreguín-Toft was analyzing conflicts in which one side was at least ten times as powerful—in terms of armed might and population—as its opponent, and even in those lopsided contests the underdog won almost a third of the time.

In the Biblical story of David and Goliath, David initially put on a coat of mail and a brass helmet and girded himself with a sword: he prepared to wage a conventional battle of swords against Goliath. But then he stopped. “I cannot walk in these, for I am unused to it,” he said (in Robert Alter’s translation), and picked up those five smooth stones. What happened, Arreguín-Toft wondered, when the underdogs likewise acknowledged their weakness and chose an unconventional strategy? He went back and re-analyzed his data. In those cases, David’s winning percentage went from 28.5 to 63.6. When underdogs choose not to play by Goliath’s rules, they win, Arreguín-Toft concluded, “even when everything we think we know about power says they shouldn’t.”

I am reminded of Billy Murry’s quote from Groundhog Day, “I’m not gonna play by their rules anymore!”

No Saggy Pants in Flint Michigan!

Glad to see somebody is working hard on the laws that govern us as nation.  from the Flint Journal:

Acting Flint Police Chief David R. Dicks announced Thursday that officers will begin arresting people wearing pants or shorts that sag too low exposing rear ends.

“This immoral self expression goes beyond free speech,” said Dicks in a statement released Thursday. “It rises to the crime of indecent exposure/disorderly persons.”

You know this is not gonna work out the way they think.

Enforcement of these laws is destined for failure—both for practical reasons and constitutional reasons—but the very fact that governments in this country are trying to dictate how Americans wear their clothes should sound an alarm to everyone who values freedom of expression and personal autonomy.

Read more here.

In Flint, any young men wearing saggy attire better not be “walking dirty” because, as the above comentator notes, the police will search anybody incident to an arrest for saggy drawers.

But of course, I forget that Alabama has always been a trendsetter in restricting laws. The City of Bayou La Batre banned saggy pants a month ago.

Phillip Tutor wrote about this in The Anniston Star a month ago and hits the point much better than I:

Look, I think saggy pants are as stupid as men’s Speedos. Some things just shouldn’t be seen. And I have no problem with a city citing people for, in essence, walking down the street in their Fruit of the Looms. I shouldn’t have to look at some guy’s underwear when I’m trolling through the mall.

We already have on-the-book laws that address public indecency. I can’t walk down Quintard naked. My neighbor can’t go to the store wearing her bra — and nothing else above the waist. No sane person’s arguing those ordinances. And I’m not such a virulent ACLUer that I say, what — or who — is next? I don’t see this as the erosion of fashion civil rights.

But the saggy-pants issue is a Pandora’s Box; open it, and what flies out?

Charges of racial profiling.

Accusations of racism and the unfair targeting of a city’s low-income, inner-city youth.

And First Amendment arguments that you may not agree with, but carry significant weight.

Let’s be honest. Thanks to one nationally-televised speech by Barack Obama, it’s now politically correct — no, encouraged — to discuss race, so let’s. The whole idea of banning a style of dress strongly associated with black males and the hip-hop lifestyle cannot help but cause people to believe the city is condemning a segment of our population’s standard of living.

Conform. Do it our way. Or else.

This won’t work.

If cities legitimately want to assist their black communities — to reduce black-on-black crime, to diminish teen pregnancies and drug use, to elevate educational opportunities for those without them — then address the problems head-on. Put energy into tangible remedies, not civic versions of What Not To Wear. Become one of the first Southern cities to substantially address the need for more parental guidance and discipline in the homes of all youth, not just those who listen to hip-hop and sag their britches.

Expecting a young man to change his behavior because the City Council made him hitch up his pants is a foolish premise. Legislated conformity only breeds more rebellion.

Or, think of it this way: If Jacksonville did ban coeds from showing below-the-waist skin, think Jacksonville State’s campus would suddenly become sex-free?

I doubt that would work, either.

Hammett Will Not Seek Re-Election, Covington County Mourns

The Alabama House of Representatives has just adjourned, sine die.  The man making the motion was Andalusia’s Seth Hammett, Speaker of the House.  Speaker Hammett stated he wanted everyone in the House chamber to know, from him, that he would not be running for re-election in 2010.

It is difficult in one afternoon to describe the accomplishments of Speaker Hammett as well as what he means to the people of Covington County.  The Speaker has served with distinction and has faithfully represented the people of Covington County, as well as East Escambia County.

Perhaps the best story I can offer is from an old friend of mine, now deceased, who had a problem with his motel in Heath, in Northern Covington County.  It seems there was a bar next door and every weekend the patrons of the bar would disturb the motel’s patron until daybreak, not to mention the trashing of the motel parking lot.  My friend was losing money and he had a family to raise.

My friend went everywhere for help and nobody would listen or help.  Part of the indifference might be the fact my friend was a Hindu immigrant and spoke English with an Indian accent.  The only official that would help or listen was Seth Hammett.  Indeed, Speaker Hammett came to the motel one night and sat drinking coffee with my friend until 2 in the morning and discovered for himself how awful the bar situation was.  Only Seth Hammett would do that.

When the bar closed down a short time thereafter, it was due to Speaker Hammett’s advice, suggestions and influence.  My friend’s motel stayed in business and he was able to resume his business and raise his children.  Those children are now businessmen in Andalusia and Opp and are not only heirs of their father, but also of Speaker Hammett’s kindness and hard work.

There are a thousand other similar stories of people Seth Hammett has helped over the years and he is adored by the people of Covington County.  If he had chosen to run in 2010, he would win again with his usual margin of 70% plus because he has helped over 70% of the people of the County, their friends or family in one way or another.

He cannot be replaced.

Good news is, as he pointed out in the House Chamber this afternoon, he will still be Speaker for 20 more months.

DUIs in Alabama are Invalid

There is a reasonable suspicion everyone ever found guilty by the use of a DUI testing machine (the Drager Alcotest 7110) has a cause of action against Drager and the State of Alabama.  Also, the State of Alabama has a terrific case against Drager for selling the State these crappy machines.  Here is a picture of the Drager 7110:

Photo Credit: Jay Hare, Dothan Eagle

To my knowledge, no DUI lawyer in Alabama had gotten ahold of the Drager source code for the 7110.  Drager always argues in court their source code is proprietary and revealing the source code would damage their business.  Quoting Bruce Schneier, “They were right about the second part, of course, because it turned out that the code was terrible.”

These machines are simply not reliable.  DUI lawyers and experts, criminal lawyers and even myself have known this for years.  What we did not know was that the software running the Drager was so flawed.

In New Jersey, where some enterprising lawyers got ahold of the source code through criminal discovery and had it tested, 24 major defects were found in the code.

From the New Jersey testing lab’s report:

It is clear that the Alcotest software would not pass development standards and testing for the U.S. Government, the U.S. Military, the Federal Aviation Administration or the Federal Drug Administration, as well as commercial standards used in devices for public safety.

Catastrophic Error Detection Is Disabled – The code has disabled capabilities in the processor that detect catastrophic problems when instructions are executed with regard to invalid and/or illegal data values or with corrupted instructions. Turning off these safeguards means as these conditions are encountered, the machine produces unpredictable results.

This thing looks like a train wreck to me.  Another Brown v. State, 565 So.2d 585 (Ala.1990) may appear here.  Brown was a class action filed on behalf of anyone in the State of Alabama who had been convicted of traffic offenses based upon improperly verified Uniform Traffic Ticket and Complaints, (“UTTCs”).  Back in the day, when you got a traffic ticket (a UTTC), it was common practice for the police officer giving the ticket to not verify (or swear to the truth of the ticket) before a judicial officer.  The problem with this was a lack of verification meant the judicial courts did not have subject matter jurisdiction over the criminal case instigated by the ticket and therefore the ticket was void.

A bad Drager source code could also mean that all Alabama DUI convictions based on this horrible machine could be void.

Meanwhile, a good DUI lawyer can use this flaw to attack the machine’s findings in court.  Round here, Manish Patel and Chris Sledge are two of the best.

I don’t like having drunks on the highway, I have represented too many victims of such drivers.  But fair is fair.  Alabama needs to go to blood testing or some smart guy needs to invent a reliable machine that will accurately test for DUI in Alabama.  Again read the New Jersey lab report as they point out that the Drager might also let a drunk driver go free:

An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

If the Alabama State Troopers are using the Drager as part of their new vans they take to roadblocks, this thing is so inaccurate it might let a drunk beat the test and go out and kill somebody.  Legislature take note:  Blood testing.

Nico Johnson- No Coverage by Hometown Paper

Photo credit: Jay Hare, Dothan Eagle

Nico Johnson is a great kid.  Quiet, unassuming, not a showboat or a kid with a bad attitude.  I know his mom and she raised an outstanding young man.  When his lawyer in the following article says,

“He is a very fine young man,” Jones said. “He is a polite, gentle person, almost too passive. This is out of (Johnson’s) character for someone to allege this.

“When someone first told me, I was like, ‘Are you talking about Nico Johnson? Are you kidding?’”

The lawyer, John Jones, is not just huffin’ and puffin’ for the press.  If John Jones says it, believe it.  Let me repeat: Nico is a good guy and I doubt he is guilty of these harassment charges.  Also, the story makes me wonder if there would have been charges except that Nico is going to Alabama this fall and is a big-time recruit.  The Andalusia Star News says it was a “verbal, non-physical altercation with another male.” My guess is some wise guy was messing with Nico and he told him to stick it.

My question is why the Star News silence except for the police blotter entry?  Shoot, if I’m going to be arrested every time I have a verbal, non-physical altercation with another male, they’re gonna have to put a revolving door on the Covington County jail.  Just this morning, arguing with insurance adjusters and lawyers, I think I’ve had at least five verbal, non-physical altercations with another male.

The least the Star News could do is to cover the story so Nico doesn’t get a bad rap in the insane, sports crazed State of Alabama where the rumor mill and the nutty forum boards will have him in prison for murder by sundown.  When he’s cleared, I hope the Star News will speak up.

Meanwhile, if Nico does what I think he is capable of at Alabama and beyond, this probably won’t be the first time somebody tries to yank his chain or try to get a rise out of him.

No celebrity, no case.

So, since there is no Star-News coverage of an Andalusia story, I give you the Dothan Eagle account:

By David Mundee

Published: May 8, 2009

Andalusia two-sport standout and University of Alabama football signee Nico Johnson faces “a verbal, non-physical” misdemeanor harassment charge in Andalusia following an alleged exchange this week with another male.

Johnson, who is scheduled to report to Alabama later this month, turned himself in to police Tuesday after a warrant was issued by the local court magistrate following a complaint.

He posted a $500 bond, according to a published report on al.com. A preliminary court date of May 18 has been set at Andalusia Municipal Court, said Johnson’s attorney, John Jones, of Jones & Jones in Andalusia.

“He has entered a not guilty plea,” said Jones. “He has waived his arraignment, so we can try to speed up the process.”

The charge is a Class C misdemeanor offense, which by state law is punishable by “no more than three months in jail and no more than a $500 fine.”

Johnson has been a four-year standout in football and basketball at Andalusia. A 6-foot-3, 235-pounder, he starred at linebacker in football and as a forward-center in basketball. He signed to play football at Alabama this past winter.

Michael Johnson, Johnson’s older brother, said he believes the issue is “blown out of proportion.”

“It is all false accusations and I feel all the problems will be worked out in the next day or two,” Johnson said Friday.
Jones also felt Johnson would be cleared.

“From what I understand, it seems to be a misunderstanding that has been blown out of proportion,” Jones said. “I am confident Nico will be exonerated.”

Johnson’s brother said he could not go into details of the incident other than to verify that it happened Sunday in Andalusia with another Andalusia High student. He added Nico Johnson has been advised not to talk about the incident.

Andalusia head basketball coach Richard Robertson also declined to talk about the issue, citing it was a non-school issue since it happened away from the campus and on non-school time.

Jones, Johnson’s lawyer, also did not go into details of the incident.

“I have not looked at the complaint, but I have talked to Nico and he denies the charge,” Jones said.

Michael Johnson said Alabama head football Nick Saban has been made aware of the situation.

Jones said he has known Nico Johnson all of Johnson’s life and expressed “shock” at the allegation.

“He is a very fine young man,” Jones said. “He is a polite, gentle person, almost too passive. This is out of (Johnson’s) character for someone to allege this.

“When someone first told me, I was like, ‘Are you talking about Nico Johnson? Are you kidding?’”

Johnson was a three-time all-state selection in both football and basketball and was honorable mention all-state football as a freshman.
This past year, he earned first-team all-state in both sports from the Alabama Sports Writers Association and was one of three finalists for Class 4A state player of the year honors in basketball.

In football, he finished with 110 tackles — 11.0 a game — with two sacks, an interception, a fumble recovery and a blocked punt. In basketball, he averaged 20.1 points, 16.3 rebounds and 4.1 blocks a game this past season, helping the Bulldogs finish 26-3 and reach the Class 4A state Final Four in Birmingham.

For his career, Johnson made 425 tackles in football from his freshman to senior seasons, including 12 quarterback sacks, while causing 10 fumbles and recovering eight fumbles. He also blocked four punts and a PAT attempt.

In basketball, Johnson finished his Andalusia career with 18.7 points, 15.4 rebounds and 4.0 blocks a game. He was a four-year captain, the first ever in Robertson’s 34-year coaching career at AHS.

Luther Strange Campaign Slogans

Big Luther is running against Troy King for attorney general.  Here is the usual rundown:  Montgomery Advertiser; Press Register; and the Birmingham News.

Now he just needs a slogan.  Me, being ever helpful, volunteers:

Barney Fife and the Law in Alabama

A commenter yesterday invoked Barney Fife and it seems a good jumping off point to talk about the “Barney Fife Exception” to the 4th Amendment.  This comes from the United States Supreme Court’s United States v. Herring decision, which all started Dale County, Alabama, a couple of counties over from here.  Back in the mists of time I mentioned the argument of Pam Kaplan, the attorney for Herring before the Court:

CHIEF JUSTICE ROBERTS: So, you would impose a burden on the officer on the street serving a warrant? When he gets the call saying there’s a warrant, he’s supposed to say, “Are you sure? Did you double-check with the clerk? When was the last time they updated the computer system? I don’t want to go through all this if the evidence is going to be suppressed.” At every chain in command, you would impose that burden.

MS. KARLAN: No, I would not, Mr. Chief Justice, because if you announce that police error is going to lead to the suppression of evidence, the police will do a better job of maintaining their records.

CHIEF JUSTICE ROBERTS: Yes, but I mean I don’t know what the situation is like —

MS. KARLAN: And then you won’t have this problem.

CHIEF JUSTICE ROBERTS: I don’t know what the situation is like in Dale County. They probably don’t have the latest version of WordPerfect, or whatever it is. They are probably making do with whatever they can under their budget and doing the best they can.

MS. KARLAN: But there’s not a Barney Fife defense to the violation of the Fourth Amendment either.

Again, hat tip to Simple Justice.

The problem is that Herring has now created a Barney Fife exception to the 4th Amendment.  The Supremes ruled:

When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements,the exclusionary rule does not apply.

The problem with this ruling is it allows the police to claim, “I screwed up” if they ever get in a search and seizure jam.  Also, the Court is basically saying they will reward negligent (Barneyish) police work when it occurs.

Meanwhile Andy’s calm and deliberative approach to police work suffers because it becomes easier for the cops to do it Barney’s way.