Friday, December 19, 2008

Trouble on the North Shore, harmony on the South

Two separate cases in Minnesota's Arrowhead have lowered the already low public opinion of the Feds in that part of the state. In one case, the Border Patrol agent that struck and killed a doctor clearing a tree from the Gunflint Trail, had her claim, that she was immune from local prosecution because she was a federal agent on duty, denied by a Federal judge. She will need to return to the area to face charges. In the other case, the man that prosecutors claimed started the Ham Lake forest fire in virtually the same area killed himself in his Washington DC home. Even though all evidence seems to indicate that it was an accident, caused by a campfire getting out of control, the US attorney insisted on charging Mr Posniak with a more serious felony charge, similar to arson, which had mandatory jail time if convicted.

I had written about the sketchy reputation of the Border Patrol in northern Minnesota in an earlier post. I think the Federal judge made the right decision in having her return to face the music in the area where the the accident occurred. You can make book on the fact that there will be a motion for change of venue however. The Posniak case on the other hand, will never go to trial. The charges by the prosecutor and possibility of doing time in Federal prison prison apparently drove the man to take his own life, making him as one area resident put it, "...the only casualty of the Ham Lake fire".

I know a little bit about prosecution because in another life 'I were one'. I worked as a paralegal in a District Attorny's office in western Wisconsin for 3 years in the mid '70's. One of the more interesting aspect of the job, one that I was involved in only as an observer, was the decision of what to charge a defendant with. In many instances the cops would arrest a guy and charge him with a number of crimes. We would then attempt to sort out the police report and figure out what the defendant actually did, what he could be convicted of based on the elements of the crimes, and often attempt to puzzle out actual intent based on prior records. A good example to illustrate this process is the heinous crime of public urination, very common near the nest of bars by our college campus. Depending on the circumstances, attitude of the urinator, mood of the arresting officer, etc., charges could range from simple city disorderly conduct to a boatload of charges including state misdemeanor disorderly, public urination, public drunkeness, indecent exposure, and so on. We would get the reports, usually a pile of em on Monday morning, and the prosecutors would decide what to actually charge in the initial appearance. In some offices (not ours) it was a common practice to 'load the boat'. Charge the defendant with 3 or 4 things, hoping to get him to agree to plead guilty to the one you really want in exchange for dropping the others. This would make the defendant feel good because he got a couple charges dropped, make the cops happy that you charged all the stuff they did on the arrest, and also served to make lazy defense attorneys look good because they could claim they got charges dropped. The technique of charging a more serious crime with the hopes of avoiding trial by reducing it to a lesser charge was also common. The other element in this whole mix was politics. High level cases were usually grabbed by the DA rather than one of the assistants because he needed the publicity since he was the guy who had to stand for re-election. At the US attorney level politics would never be an issue however because there is no politics involved in that.........oh wait.....I guess there was that Gonzales/US attorney firing thing wasn't there?

If I were the US attorney (and still had my job because I hadn't pissed off any Bush administration officials) I guess I'd take a look at the arrest reports and other elements, and attempt to reason out appropriate charges. Mr Posniak was a 64 year old retired Federal employee who graduated from the Uof M and had been returning to the BWCA every spring for the past quarter of a century. It would seem from reports that his campfire got out of control, he tried to put it out, and then took way too long to get back to the lodge and report it. When he was questioned by the authorities, he panicked and claimed he was on a different lake than the one he was actually on. He lied to the law. But nothing would indicate that he set the fire maliciously or was attempting any kind of arson to an area that he loved and had made a point to visit every spring. And let me tell you, it ain't an easy shot from Washington DC to the BWCA; you gotta really want to do it. So, I guess if it were me, I would have charged him with a couple of misdemeanors like Fibbing to a Forest Service Guy and Negligent and Dumb Ass Campfire Control and let it go at that. You can be certain that he would have been dealing with enough civil suits and actions to make his head spin anyway. Now his estate will get to deal with those. It would seem that a lot of the folks up north that were affected by the fire have the same opinion, that the Feds were heavy handed in this case and because of it a man is dead.

We can only hope that the tone and tenor set by the incoming Obama administration will help alleviate some of this negativity and suspicion regarding the Feds. On a very positive note, on our side of the big lake, the National Park Service has given a grant to local fire departments to help equip them to fight forest fires, some of which may occur in the Apostle Islands National Lakeshore. This is the kind of stuff that helps to cement the relationship between Federal and local entities and also tends to grease the wheels of cooperation. Radios, fire shelters, protective gear and equipment, and training are all postive things that can help protect everyones forest (including mine!). We need more win-win's like this and less of the bull in the china shop mentality that seems so easy for the Feds to embrace. We shall see come January 20th.