Department of Homeland Security - How Well Is It Doing?

What is the mission of the Department of Homeland Security (DHS)? According to the DHS Strategic Plan, its mission is to "...lead the unified national effort to secure America...prevent and deter terrorist attacks and protect and respond to threats and hazards to the Nation...ensure safe and secure borders...welcome lawful immigrants and visitors, and promote the free flow of commerce."

How well is DHS accomplishing its mission?

To get the answer, read the DHS's Fiscal Year 2006 Annual Performance Plan.

"The Government Performance and Results Act (GPRA) of 1993, Public Law 103-62, requires agencies to submit to the Office of Management and Budget (OMB) an annual performance plan covering each program activity in the agency's budget. The annual performance plan is to provide the direct linkage between the strategic goals outlined in the agency's strategic plan and what managers and employees do day-to-day. The plan is to contain the annual performance goals the agency will use to gauge its progress toward accomplishing its strategic goals and identify the performance measures the agency will use to assess its progress."

In other words, the GPRA of 1993 requires agencies to have long- and short-term plans and the mechanisms in place to measure how well those plans have been met. It's a way to hold federal agencies accountable to the taxpayers, the people who pay the bills.

As bureaucratic and uninteresting as this all sounds, there is some interesting and informative reading in the DHS's Fiscal Year 2006 Annual Performance Plan. It does help answer questions people often raise about whether or not DHS is really effectively meeting its mission.

As an endnote, an "oh, by the way...", I wonder if our county and city agencies would function more effectively if they were required to conform to a state standard proportionally as demanding as the GPRA of 1993. Just a thought.

Badly Mistaken Identity

In March 2006, the US Department of Justice, Office of Inspector General (OIG), released its unclassified and redacted report entitled A Review of the FBI's Handling of the Brandon Mayfield Case.

On March 11, 2004, 10 bombs exploded on four early-morning commuter trains in three stations in Madrid, Spain. The blasts killed approximately 191 people and injured approximately 1,800. The BBC News compiled much of the publicly available information on its webpage entitled Madrid Train Attacks.

On March 19, 2004, the United States Federal Bureau of Investigation (FBI) Laboratory Division identified an Oregon attorney, Brandon Mayfield, as the source of a fingerprint recovered on a piece of Madrid bombing evidence by the Spanish National Police (SNP). Mayfield was immediately placed under constant FBI surveillance and investigation. On May 6, 2004, after receiving news media inquiries about an American suspect in the Madrid bombing case, the FBI arrested Mayfield on a material witness warrant. But on May 19, 2004, the SNP notified the FBI that the SNP has positively identified the fingerprint as belonging to an Algerian national, not to Brandon Mayfield. The FBI was provided with the Algerian's fingerprint and concluded that it, not Mayfield's, was a match. Mayfield was released from US detention on May 20, 2004, and the material witness proceeding against him was dismissed formally on May 24, 2004.

On June 16, 2004, the OIG initiated an investigation into the FBI Laboratory's misidentification of Brandon Mayfield. The objectives of the OIG's investigation were:

• To determine the causes of the FBI Laboratory's misidentification of the fingerprint and to assess the Laboratory's conduct in the matter
• To assess the FBI Laboratory's responses to the error and to make recommendations to prevent future errors
• To determine if the FBI had unfairly targeted Mayfield because of his religion (Islam)
• To assess the FBI's conduct in Mayfield's investigation and arrest
• To assess the FBI's conduct in representations it made to the US District Court in support of its requests for the material arrest warrant and search warrants
• To assess the conditions of Mayfield's confinement prior to release.

The results of the OIG's investigation were reported in Chapter 7 of the report.

Can Bloggers Be SLAPPed?

SLAPP is an acronym for Strategic Lawsuit Against Public Participation. It refers to lawsuits, often by corporations, developers, and governmental officials to stifle public policy debate and public criticism by suing those who would debate or criticize.

To better understand what a SLAPP is, how to reduce your chances of being SLAPPed, and how to deal with a SLAPP if you are SLAPPed, see the California Anti-SLAPP Project's Survival Guide for SLAPP Victims.

To learn more about SLAPP from a journalism perspective, see the Society of Professional Journalists (SPJ) A Uniform Act Limiting Strategic Litigation Against Public Participation: Getting It Passed. Appendix A of this paper answers such key questions as:

• What is a SLAPP suit?
• Isn't action involving public participation and petition already protected by the Constitution? Why is a special anti-SLAPP provision needed?
• What will anti-SLAPP legislation do?

The main body of the SPJ paper gives some interesting history that precipitated anti-SLAPP legislation, particularly in Washington State and California. It provides suggestions for working toward getting anti-SLAPP legislation passed in states that do not have it. Some of the common-sense suggestions are:

• Enlist an influential government supporter
• Enunciate the problem
• Build a coalition
• Tell a meaningful story
• Channel your power effectively
• Play the politics
• Be patient
• Be willing to compromise

I'd like to end this post on a positive note. Washington State was the first state to pass anti-SLAPP legislation (see RCW 4.24.510). The note to that citation reads, in part, "Although Washington state adopted the first modern anti-SLAPP law in 1989, that law has, in practice, failed to set forth clear rules for early dismissal review. Since that time, the United States supreme court has made it clear that, as long as the petitioning is aimed at procuring favorable government action, result, product, or outcome, it is protected and the case should be dismissed. Chapter 232, Laws of 2002 amends Washington law to bring it in line with these court decisions which recognizes that the United States Constitution protects advocacy to government, regardless of content or motive, so long as it is designed to have some effect on government decision making." [2002 c 232 § 1.].

DISCLAIMER: This post is not intended to substitute for legal advice from an attorney practicing in your state. It is intended only to provide enough information to enable bloggers to more effectively and efficiently prepare to deal with competent legal counsel.

I hope it helps.

The Hole's Deep Enough - Stop Digging!

It is rarely possible to extricate oneself from a hole by digging the hole deeper, but Coeur d'Alene Mayor Sandi Bloem and the Coeur d'Alene City Council are trying.

On Friday, March 24, 2006, The Spokesman Review newspaper published an article headlined CdA won't hook up tower. The story's lead was that the City of Coeur d'Alene was unwilling to provide its neighbor, Fernan Village, with additional sewer hookups. Newspaper staff writer Erica Curless noted, "(Coeur d'Alene) Deputy City Administrator Jon Ingalls said the City Council made the decision in a March 7 closed-door meeting..."

Idaho Code 67-2345 (3) explicitly states "No executive session may be held for the purpose of taking any final action or making any final decision." An "executive session" is a closed-door meeting, because the public is excluded.

Oops.

But not to fear. The Coeur d'Alene Press, the City of Coeur d'Alene's appointed, designated and constituted official newspaper, rode to the rescue with its own story, "Cd'A: Fernan sewer deal stinks", (see Addendum below) on Saturday, March 25, 2006. Press staff writer Marc Stewart provided more detail about the nearly 30-year-old sewer agreement between Fernan and Coeur d'Alene. He also gave the Mayor and City Council another shovel.

The Press article today confirms what Deputy City Administrator Jon Ingalls told The Spokesman Review staff writer in yesterday's story: The matter was discussed during executive session at the Coeur d'Alene city council's March 7 meeting. Unlike yesterday's Spokesman Review article, today's Press article reports Ingalls now says no decisions were made. The article goes on to say that Coeur d'Alene Mayor Sandi Bloem asserts that during the executive session, there were no decisions made or any votes taken. However, Press writer Marc Stewart discloses Coeur d'Alene Councilwoman Dixie Reid acknowledging the council "...came to a consensus...".

So how did the Coeur d'Alene city council arrive at Dixie Reid's "consensus" without making any decisions or taking any votes? And wouldn't arriving at a "consensus" require "deliberation", which is supposed to be done in public, not in executive session?

In the Press article today, Coeur d'Alene Mayor Sandi Bloem is quoted saying, "It was a discussion about possible litigation." Is there pending litigation? Has someone filed a lawsuit over the Fernan sewer deal? I don't think so. Well, then is there a "...general public awareness of probable litigation"? Somehow, I doubt that on March 7 the general public in Coeur d'Alene was even remotely aware of the details of the Fernan - Coeur d'Alene sewer agreement, let alone having formed an awareness of probable litigation over the agreement.

The more information published in our newspapers about the Coeur d'Alene City Council's executive session on March 7, the deeper the Open Meeting Law violation hole gets. To our Mayor and City Council: The hole's deep enough; stop digging before it caves in on you.

ADDENDUM: The Coeur d'Alene Press story cited above originally appeared on the Press's website, so I hyperlinked to it. However, on Monday, March 27, 2006, I clicked on the Press link in my post and found it has now been associated with a different Saturday story. Consequently, I've killed the link in my post. Isn't it coincidental that if I had left the Press link alive, it would have linked to a story headlined "Vanished -- No clues, no remains"? Hmmm...

Executive Session - Did the Council Decide?

In The Spokesman Review article headlined CdA won't hook up tower published on Friday, March 24, 2006, staff writer Erica Curless reports that the Coeur d'Alene City Council is unwilling to give Fernan Village any more sewer connections. (Fernan Village is not part of Coeur d'Alene.) She reports, "Deputy City Administrator Jon Ingalls said the City Council made the decision in a March 7 closed-door meeting..."

A review of the Coeur d'Alene City Council's approved minutes for the March 7, 2006, meeting does not reflect any public discussions or motions relating to sewer connections in Fernan Village.

The minutes, however, do show the Council going into executive session twice. The first executive session was from 7 p.m. until 7:18 p.m. under authority of Idaho Code 67-2345C (To conduct deliberations concerning labor negotiations or to acquire an interest in real property which is not owned by a public agency.) According to the minutes, that session was attended by the Mayor, the City Council, the City Administrator, the Deputy City Administrator and City Attorney. Matters discussed were those of labor negotiations. Based on the section cited, this executive session was not likely the one concerning sewer connections in Fernan.

The second executive session was from 8:19 p.m. until 9:08 p.m. under authority of Idaho Code 67-2345F (To consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation.) According to the minutes, that session was attended by the Mayor, the City Council, the City Administrator, the Deputy City Administrator and City Attorney. Matters discussed were those of litigation. It seems likely this executive session was the one in which Fernan Village sewer connections were discussed. However, the minutes clearly state, "No action was taken and the Council returned to regular session at 9:08 p.m." The minutes reflect that immediately after returning to regular session, there being no further business to conduct, Council member Edinger offered a motion to adjourn. The motion was seconded by Council member McEvers, the motion carried (no vote recorded), and the meeting adjourned at 9:08 p.m.

At this point it is relevant to examine the Coeur d'Alene City Council meeting's minutes of March 21, 2006. Under that meeting's Consent Calendar, 1tem 1, the minutes of the Council's March 7 meeting were approved with no changes made.

The final paragraph of The Spokesman-Review's news story noted that, "Deputy City Attorney Warren Wilson didn't attend the March 7 meeting..." This is somewhat confusing, because the Council's minutes of that meeting note that the City Attorney (Mike Gridley) was present. Was Mike Gridley present in the executive session on March 7? If so, then Wilson's non-attendance isn't an issue. If Gridley was not present, then which Deputy City Attorney was present at the executive session in which matters of litigation were discussed? It would have been difficult "To consider and advise its legal representatives in pending litigation..." if no legal representative was present. The newspaper story should have clarified this important point.

The real issue, however, is when did the City Council make the decision reported in the article? Was the decision made in an open public meeting? Idaho Code 67-2342 (3) clearly states "No executive session may be held for the purpose of taking any final action or making any final decision." Yet as reported, "Deputy City Administrator Jon Ingalls said the City Council made the decision in a March 7 closed-door meeting..."

On August 23, 2005, August 23, the Idahoans for Openness in Government and The Spokesman-Review sponsored a public workshop on the Idaho Open Meetings Law and the Idaho Public Records Law. Idaho Attorney General Lawrence Wasden and Deputy Attorney General William van Tagen spoke at the workshop. The Coeur d'Alene Mayor and City Council were not present. Too bad.

US Forest Service Use of Contract Firefighting Crews

With fire season fast approaching, The Seattle Times article headlined Report says private firefighting crews inadequately trained caught my eye. The article was written by Seattle Times staff reporter Craig Welch. It was published on March 22, 2006.

The Times article did not provide a URL for the report, so I went to the Idaho Panhandle National Forest Supervisor's Office at 3815 Schreiber Way in Coeur d'Alene, Idaho, to try and obtain the URL. The front-desk employee contacted the public information officer, Dave O'Brien, by telephone and asked for the information. The employee relayed Mr. O'Brien's response that the report didn't involve the Forest Service. End of conversation.

I sent an email to Seattle Times staff reporter Craig Welch, and within a few minutes he provided a link to the US Department of Agriculture, Office of Inspector General (OIG), Western Region, Audit Report entitled Forest Service Firefighting Contract Crews. The report number is 08601-42-SF, dated March 2006. The US Forest Service is an agency of the US Department of Agriculture.

The report details the results of a three-year investigation by the OIG. The USFS uses contract firefighting crews to supplement USFS employee firefighters. These contractors are expected to be trained to USFS standards by private organizations that represent wildfire suppression contractors. Those standards are intended to ensure safety and efficiency on the fire scene.

During the 2002 fire season USFS incident managers noticed performance problems with poorly trained and inexperienced crews hired under the Pacific Northwest Wildfire Coordinating Group's Interagency Firefighting Crew Agreement of 2002. In particular the USFS managers observed:

• Contractors certified qualificatons for crewmembers who had not satisfied standards and requirements for their positions.
• Instructors who are hired by the companies providing the firefighters may have been pressured to cut corners on training.
• There was no assurance that supervisors of non-English speaking contract crews could communicate effectively with incident management staff or their own crews.
• Undocumented workers are used by contract firefighting crews.

The OIG recommended that the USFS:

• Develop a program to review and verify national contract firefighter qualification records.
• Verify that associations' training sessions are monitored for standards performance.
• Ensure that associations' electronic training records cannot be modified by persons with an employment or financial interest in a contractor's business.
• Adopt an appropriate standardized field language assessment for national contract crews and ensure it's completed before fire season.
• Coordinate with federal agencies to identify counterfeit documents used to obtain employment on contract crews.

In response to this report, the USFS concurred with all the OIG's findings and recommendations.

Catch-and-Release Sex Offender Strikes Again, Captured Again

On Friday, March 17, 2006, Fox News and other national news media reported that Kenneth G. Hinson had been captured near his home in South Carolina. Hinson, convicted of raping a 12-year-old girl in 1991, had been given an early release from prison in 2000. Prior to Hinson's release, a state review committee had recommended he be civilly committed indefinitely to a Department of Mental Health facility for treatment. A circuit court judge refused to make that recommendation, saying prosecutors had failed to show Hinson was likely to reoffend.

After being released, Hinson allegedly did reoffend.

On Monday, March 13, 2006, Hinson allegedly broke into a neighbor's home, kidnapped two 17-year-old girls, and took them to his own home where he bound them to prevent their escape. He then took each of them individually into a specially-created room, characterized as a dungeon in the news, under a shed on his property where he raped and assaulted each girl. The room is in photos available at the Fox News link. The girls managed to escape and run for help. Hinson was captured Friday near his home.

Hinson's case once again raises the question about how reliably and accurately prosecutors or mental health professionals can predict which sex offenders are likely to reoffend. In May 2001, the US Department of Justice, Office of Justice Programs, Center for Sex Offender Management published a study entitled Recidivism of Sex Offenders. The introduction to the study notes, "The purpose of this paper is to examine the critical issues in defining recidivism and provide a synthesis of the current research on the reoffense rates of sex offenders. The (study's) sections summarize and discuss research findings on sex offenders, factors and conditions that appear to be associated with reduced sexual offending, and the implications that these findings have for sex offender management. Although studies on juvenile sex offender response to treatment exist, the vast majority of research has concentrated on adult males. Thus, this paper focuses primarily on adult male sex offenders."

Though somewhat dated, the study is a decent primer on adult sex offender recidivism.

That Would Never Work...Would It?

On March 2, 2006, The Spokesman Review published an op-ed piece I wrote. The newspaper headlined the article Bi-state effort answer to jail overcrowding. The headline notwithstanding, the overall theme of my suggestion was the creation of a regional criminal justice center that would include, among other things, a regional training center for public safety officers.

A few people have contacted me to talk about this. One concern is that combined interstate public safety training would not work well. How could agencies with different jurisdictions train together efficiently and effectively? That would never work...would it?

Yes, it not only would work, it has been working since 1970. It's the Federal Law Enforcement Training Center (FLETC). FLETC serves as an interagency law enforcement training organization for 81 Federal agencies. The Center also provides services to state, local, and international law enforcement agencies. Here's a link to the FLETC Training Programs page. Click on any of the programs to see more about course content.

I would hope that if the States of Washington and Idaho supported efforts by Spokane and Kootenai Counties to work toward a regional training center, Senators Cantwell, Murray, Crapo, and Craig would facilitate helpful meetings between regional leaders and FLETC administrators. The FLETC could easily serve as a model for a regional public safety training center.

Bungled

On Friday, March 10, 2006, The Spokesman Review published a letter to the editor from Dave McCabe who identifies himself as the vice president of the Spokane Police Guild. His letter notes the guild stands behind the detective and sergeant who investigated the firefighter having sex with and making sexually explicit photographs of a 16-year-old girl inside a Spokane city firehouse.

It's reasonable and appropriate for a Spokane Police Guild officer to express the guild's support for members whose official conduct has been questioned. He should have stopped with that rather vanilla expression, but he didn't.

McCabe continued, "Once all information relating to this case is released, I am confident the detective and sergeant will be seen for what they are: experienced and professional law enforcement officers." The hypocrisy drips from McCabe's statement. McCabe knows very well all the information relating to this case will not be released. Certain personnel matters will not be disclosed because of privacy regulations and defamation liability. If the city were to release all information relating to the detective's and sergeant's conduct in this case, Dave McCabe and the Spokane Police Guild would be screaming loudly about the violation of their members' privacy.

In The Spokesman Review story published on March 4, 2006, headlined No charges in firehouse sex, Spokane City council member Bob Apple was quoted saying, "I think the destruction of evidence is tantamount to a criminal act in and of itself." In his letter to the editor, McCabe says Apple should be ashamed of himself for that statement. Why? Destruction of evidence is a criminal act in and of itself.

In his letter's closing statement, McCabe quotes an unidentified guild member as saying, "These officers did nothing wrong." Yes, they did. They failed to perform their official duties satisfactorily. The real issue is whether their wrongs resulted from misconduct, incompetence, poor training and supervision, accidental error, laziness, indifference or some combination of all these. The investigation has been reopened under the direction of Deputy Chief Bruce Roberts, "...because the other deputy chief, Al Odenthal, was in charge of the original investigation -- which (Mayor) Hession now says was bungled."

Bungled is an unusually strong word for a mayor to use in a public statement to describe the conduct of his city's police commanders and investigators. Mayor Hession seems to understand now that his own and the Spokane Police Department's credibility have been damaged by several members of the police department from the acting chief down. We should expect to see some retirements or resignations from the Spokane Police Department very soon. They can't come soon enough.

Spokane Firehouse Sex Case Update

The Spokesman Review reported this morning that Spokane Mayor Hession announced the Spokane Police Department has reopened its investigation of the firehouse sex incident that occurred on Feburary 11.

As I noted in my March 6, 2006, post entitled Thank Goodness for Lawyers, there was probable cause to believe state crimes other than rape had been committed. Here's a quick summary:

• RCW 9A.76.080 Rendering Criminal Assistance. A person renders criminal assistance if he intends to prevent, hinder, or delay the apprehension of one whom he knows has committed a crime and he conceals, alters, or destroys physical evidence that might aid in the discovery or apprehension of the suspect. This charge would apply to the police detectives who erased or allowed to be erased the images they knew or should have known to be evidence of the crime of sexual exploitation of a minor.
• RCW 9.68A.040 Sexual Exploitation of a Minor. A person is guilty of sexual exploitation of a minor if he causes a minor to engage in sexually explicit conduct knowing that such conduct will be photographed. This applies to the firefighter who photographed the minor 16-year-old girl engaging in sexually explicit conduct.
• RCW 9.68A.070 Possession of depictions of minor engaged in sexually explicit conduct. A person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony. This applies to the firefighter who showed detectives the images he took, presumably to demonstrate the minor girl's consensual involvement.
• RCW 9.68A.090 Communication with minor for immoral purposes. A person who communicates with a minor for immoral purposes is guilty of a gross misdemeanor. This applies to the firefighter who used the Internet site to communicate with the minor girl.
• RCW 9A.28.040 Criminal conspiracy. A person commits criminal conspiracy when he intends criminal conduct to be performed, he agrees with at least one other person to engage in or perform the conduct, and any of the agreeing parties takes a substantial step in pursuing the agreement. The applies to both the police detectives and possibly the firefighter. The criminal conduct was RCW 9A.76.080 Rendering Criminal Assistance, the agreement was the collective decision to erase the evidentiary images on the camera's memory chip, and the erasure itself was a substantial step in completing the agreed upon action.
  

The firefighter has resigned from the Spokane City Fire Department, however he can still be charged and prosecuted for crimes associated with this incident. He could also be charged for other crimes should evidence of additional crimes be discovered. This would not constitute double jeopardy, because he was never arrested and charged with the alleged rape or any other crime.

The Spokane police detective and detective sergeant may have also committed crimes noted above. If any police supervisor as yet unnamed directed the erasure of the images, he too is potentially liable.

What are some potential long-term consequences for the Spokane Police Department? For one, criminal defense attorneys will very likely be examining recent convictions in which either or both detectives involved gave damaging testimony against the attorney's client. If the reactivated investigation shows the detectives did, in fact, alter or destroy evidence, the attorneys will reasonably ask two questions:

• Did the detective destroy exculpatory evidence that might have helped my client?
• Did the detective fabricate evidence that may have harmed my client?

Those are inevitable questions when a police detective is shown to have tampered with evidence.

Other consequences will depend on the diligence and integrity of the reactivated investigation. Unfortunately for the Spokane Police Department, that investigation is being conducted by the Spokane Police Department. The public would have more confidence if the investigation were conducted by an outside impartial agency, one with no political connections with the Spokane Police Department. If any supervisor(s) directed the detectives to engage in activities amounting to crimes or even professional misconduct, the supervisor(s) must be identified, certainly disciplined, and prosecuted if appropriate. The higher up the police command structure this travels and the more supervisors involved, the stronger the inclination to circle the wagons.

The public might also have more confidence in the outcome if the Spokane County Prosecuting Attorney requested that the Washington State Attorney General appoint a special prosecutor. Any impartial investigation of this entire incident must include determining what the county prosecutor's office knew, when it knew it, and what prosecutorial guidelines or policies the police were operating under.

The adult website that allowed contact between the firefighter and the minor was adultfriendfinder.com. An examination of that site reveals it is operated by Various, Inc., in Palo Alto, California. If either the minor or the firefighter was a paying registered member of adultfriendfinder.com, that may amount to interstate commerce. It may be enough to ask the US Department of Justice to get involved as investigator (FBI) and prosecutor (US Attorney's Office). The federal violations might be found under Title 18 US Code, Chapter 110, Sexual Exploitation and Other Abuse of Children.

Regardless, both the police department and the county prosecutor would be better off if the investigation and any subsequent prosecutions were conducted by outside agencies. Both the police and prosecuting attorney need to make whatever corrections are necessary to restore public trust and confidence in their people and operations.

Following Orders?

The front page story in the Tuesday, March 7, 2006, The Spokesman-Review was headlined Cops: Fireman thought girl was over 18. The headline concisely summarizes how the Spokane Police Department lamely excuses its failure to properly investigate and make an arrest in the firehouse sex case.

In yesterday's blog post I noted there were several possible crimes committed in the firehouse sex case. One was RCW 9.68A.040 - Sexual exploitation of a minor. In part, it reads "(1) A person is guilty of sexual exploitation of a minor if the person: (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance. (2) Sexual exploitation of a minor is a class B felony punishable under chapter 9A.20 RCW."

The facts on which the probable cause to arrest the firefighter for the crime noted above are these: The firefighter is a person. The 16-year-old girl is a minor. The firefighter invited the minor to the fire station where he caused the minor to engage in sexually explicit conduct which he was prepared to photograph and which he did, in fact, photograph. Police detectives saw the photographs in the firefighter's possession at the firehouse. The firefighter made evidentiary admissions to the detectives.

A reasonable person examining the facts already reported and applying them to the elements of the crime identified in the preceding paragraph would conclude there was more than sufficient probable cause to arrest the firefighter for a violation of RCW 9.68A.040. Probable cause, not conclusive proof of guilt, is what is required for an arrest.

In the newspaper story's fourth paragraph today, Acting Police Chief Jim Nicks reportedly agreed with his detective and supervisor that because the firefighter said he didn't know the 16-year-old girl was under 18 and the detectives believed him, there was no probable cause to arrest him. Acting Chief Nicks apparently believes that the firefighter's failure to accurately determine the girl's age is a complete defense which prevented his detectives from arresting the firefighter and seizing volatile physical evidence to prevent its destruction.

Acting Chief Nicks is completely wrong. The law is very specific about how the "I thought she was 18" defense must be proven by a preponderance of the evidence and when it can be used. The law explicitly required the firefighter to determine that the girl was not a minor before he engaged in sexually explicit conduct with her. The law explicitly defines what was required to determine the minor's age. The firefighter did not meet the requirements.

RCW 9.68A.110 - Certain defenses barred, permitted reads at "(3) In a prosecution under RCW 9.68A.040 or 9.68A.090, it is not a defense that the defendant did not know the alleged victim's age: PROVIDED, That is is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor."

Notice carefully the wording. "It is not a defense that the defendant did not know the alleged victim's age..." A "defendant" is a person who has already been arrested or indicted and charged with the crime. The police detectives were duty bound to arrest the firefighter, because the elements of the crime had been met and probable cause established. Had he been arrested, the firefighter could have raised the "I thought she was 18" defense at his own trial, but he would have been required to convince a judge or jury with a preponderance of the evidence. The detectives were equally duty bound to identify and preserve all of the evidence related to the crime.

The question that must be asked is why were a detective sergeant and a sex crimes detective so eager to accept as fact the firefighter's assertion that he thought his victim was 18? And even if they did believe it, it is not their decision to judge the quality of a suspect's defense in determining whether or not to make an arrest. They had physical evidence of a crime and probable cause to arrest for that crime, yet they either erased or allowed to be erased the physical evidence which conclusively proved one element of the crime.

It is inconceivable to me that even in Spokane, a sex crimes detective and his sergeant could unintentionally bungle a case this badly, particularly after getting a roll-out call that started with a call from Acting Chief Nicks. Common sense says that when someone in authority calls and says, "Chief Nicks wants you to...," you're going to follow those instructions meticulously and completely. We have to consider the possibility that in the firehouse sex case, the sergeant and the detective did exactly what they were ordered to do when they were sent to Fire Station 17.

Thank Goodness for Lawyers

I'm thankful that Spokane Mayor Dennis Hession and County Prosecuting Attorney Steve Tucker are lawyers. If they didn't have lawyers in these key elected positions, Spokanites might rely on their own common sense. If so, they would be unable to fathom why a Spokane firefighter, a Spokane Police Department detective, and the detective's sergeant have not been charged criminally for sexually exploiting a 16-year-old girl and destroying evidence of that crime.

Fortunately, Hession and Tucker are lawyers skilled at trying to convince nonlawyers that feces is really fruit salad. What they're trying to feed people in Spokane is not fruit salad.

The Spokesman-Review, Spokane's daily newspaper, ran stories reporting the alleged rape of a 16-year-old girl by a 35-year-old Spokane City firefighter at a city fire station while he was on duty on February 10, 2006. The firefighter met the girl through the Internet. Subsequent investigation determined the couple engaged in sexual contact at the fire station, however the contact was consensual. In Washington State, a 16-year-old can legally give consent for sexual contact. The firefighter was thus quickly cleared of the rape charge.

The City of Spokane very much wanted its citizens to believe that was the end of the story. It was distasteful but consensual sex. Nothing more. But the diligent investigation by The Spokesman-Review disclosed much more than the City government wanted to make public. It revealed probable cause to believe other crimes had been committed.

In a March 3, 2006, story headlined Probe targets detectives, The Spokesman-Review staff writers Bill Morlin and Karen Dorn Steele reported that in response to the girl's initial rape complaint, the Spokane Police Department sent a uniformed officer to investigate. It sounds as if that officer recognized the case had significant blow-up-in-your-face potential and wisely made a phone call. Awakened from his slumber, Acting Police Chief Nicks ordered a detective and the detective's sergeant sent to the fire station to interview the accused firefighter. During the interview the firefighter apparently revealed he possessed digital images made during the sexual encounter in the firehouse. It is reasonable to speculate that the firefighter willingly showed the images to the police detectives for the purpose of demonstrating the girl's consensual participation in the sexual contact.

The detectives concluded there was no probable cause to believe that rape had been committed. Then they either erased the digital images themselves or they allowed the firefighter to erase them, ostensibly to protect the interests of the minor female. The detectives submitted a written report to the county prosecutor. In The Spokesman Review story published March 4, 2006, and headlined No charges in firehouse sex, staff writer Bill Morlin reported that the detectives' report to the prosecutor described the deleted images. A deputy prosecuting attorney who reviewed the report concluded no criminal charges were warranted.

Let's take a common-sense, non-lawyerly look at some of the laws the police and the deputy prosecuting attorney evidently concluded were not prosecutable.

Looking at the rape charge that started this whole unravelling, we need to understand that under RCW 9A.44, the 16-year-old girl was a minor but not a child. Thus, if the crime of rape had occurred, it would have been prosecuted as rape, not rape of a child. At age 16, she could give consent for sexual contact.

The subsequent crimes that may go unprosecuted relate to the making and possible transmitting of the photographic images of the minor girl engaging in sexually explicit conduct. Before looking at the specific crimes, read the important definitions at RCW 9.68A.011.

The firefighter communicated with the minor girl via the Internet and presumably invited her to meet him for his purpose of engaging in sexually explicit conduct. RCW 9.68A.090 - Communication with a minor for immoral purposes is a gross misdemeanor. It can be a class C felony in Washington, but no evidence has been published to support that charge. Some might suggest that perhaps the girl misrepresented her age to the firefighter, so he could not have known she was a minor when he communicated with her. As noted in RCW 9.68A.110(3), it is not a bar to arrest that the defendant did not know the girl's age. However, at trial it is a defense which the defendant must prove by a preponderance of the evidence that he made a reasonable bona fide attempt to determine the minor's true age by requiring positive documentary identification and did not rely solely on the oral allegations or apparent age of the minor.

In other words, there was probable cause to arrest or seek an arrest warrant for the firefighter for violation of RCW 9.68A.090 - Communication with a minor for immoral purposes. The issue of the minor girl's representation and proof of age could have been a defense at trial but not in determining cause for arrest.

The next crime for which the firefighter might have been arrested and charged is RCW 9.68A.040 - Sexual exploitation of a minor. Specifically, he could have been arrested and charged undeer RCW 9.68A.040(1)(b) which reads, "(1)A person is guilty of sexual exploitation of a minor if the person (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance." Sexual exploitation of a minor is a class B felony punishable under chapter RCW 9A.20.

The police might also have arrested and charged the firefighter with a violation of RCW 9.68A.070 - Possession of depictions of minor engaged in sexually explicit conduct. The law states that a person who knowingly possesses visual or printer matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.

Unfortunately, we now know that the police detective and sergeant either erased or allowed the erasure of the images depicting the minor girl's sexually explicit conduct. Thus, the evidence of the felony violations was destroyed. Lawyer-Mayor Hession, when asked by reporters if the erasure of the images constituted evidence tampering or destruction, replied, "Absolutely not."

Really? If we presume the police detective and sergeant were conversant with Washington's criminal code as their duties require, then we have to presume they both had probable cause to believe that either a class B or C felony had been committed. If the detective and sergeant concluded that it was the firefighter who made the images or caused them to be made, they had probable cause to believe the firefighter had committed a class B or C felony. RCW 9A.76.050(5) explains that a person (presumably including police detectives) "renders criminal assistance" if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime or juvenile offense or is being sought by law enforcement officials for the commission of a crime..., he (5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person. Specifically, RCW 9A.76.080 provides that a person is guilty of rendering criminal assistance in the second degree (a gross misdemeanor) if he or she renders criminal assistance to a person who has committed or is being sought for a class B or class C felony...

It gets worse.

Presumably the police detective and the sergeant (and perhaps persons as yet unidentified up the Spokane Police Department food chain) were aware of the images of the minor girl and agreed to erase or allow the erasure of the images.
RCW 9A.28.040 - Criminal conspiracy provides that "A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement." If destruction of the evidence (image erasure) occurred, it was conduct constituting a crime. If the detective and sergeant agreed to erase or allow the erasure, the "agree" element has been met. If the detective or sergeant then either erased the images or surrendered the image chip to another party to effect the erasure, they took a "substantial step in the pursuance of the agreement". Criminal conspiracy is a gross misdemeanor when an object of the conspiratorial agreement is a class C felony. It is a class C felony when an object of the conspiratorial agreement is a class B felony.

The newspaper further reported a curious statement by Spokane city spokeswoman Marlene Feist. She said, "There is some evidence that city computers were used." Computers. Plural. And someone had to have mentioned the computers. Who? Probably the firefighter. That very strongly suggests the firefighter may have distributed the girl's images via the Internet to coworkers, friends, who knows who. It is also possible that the images may have been loaded onto one or more city computers and therefore may still exist at some location. The police should have taken appropriate steps to preserve the forensic evidentiary value of the computers on which the images may have been viewed and stored.

If the Internet was used to pass the photos around, then there is the possibility the images were passed over state lines. If that can be shown, then the federal government has an interest, because Title 18, US Code, Section 2252 explains that any person who knowingly transports (including transmission via the Internet) images of a minor engaging in sexually explicit conduct in interstate commerce has committed a federal crime. That is the Federal Bureau of Investigation's jurisdiction.

It's becoming apparent that the Spokane Mayor and Spokane County prosecuting attorney are in their circle-the-wagons mode. I hope what they're feeding the citizens at least tastes like fruit salad, because it stinks like...

Kootenai County Critical Infrastructure and SCADA

Sometimes people who live in Kootenai County apply the term "critical infrastructure" to larger metropolitan areas, not here. The federal definition of the term is in Critical Infrastructure and Key Assets: Definition and Identification, an October 1, 2004, report by the Library of Congress, Congressional Research Service. Here's a list of critical infrastructures identified in the report. See how many apply to Kootenai County.

1. Information and communications (telephone, radio/television broadcast, computer systems, etc.)
2. Banking and finance
3. Water supply
4. Aviation
5. Highways
6. Mass transit
7. Pipelines
8. Rail
9. Waterborne commerce
10. Emergency law enforcement services
11. Emergency fire service
12. Continuity of government service
13. Public health services, including prevention, surveillance, laboratory services, and personal health services; also including clinics and hospitals
14. Electric power
15. Oil and gas production, storage, and distribution

The list clearly shows that we have critical infrastructures in Kootenai County.

What is probably less clear, maybe even unknown to the reader, is that some or all of the systems in Kootenai County either already are or will be controlled by automated systems and monitored remotely by humans. The control and monitoring systems are collectively referred to as Supervisory Control and Data Acquistion systems, abbreviated SCADA. Since SCADA systems are more and more computer-based, they can be as vulnerable to attack as any other unprotected or underprotected computer system.

To provide information helping defend against SCADA systems attacks that could literally shut down or otherwise impair operations of any of the critical infrastructure systems listed above, the US government's Technical Support Working Group (TSWG) has an Infrastructure Protection Subgroup. This subgroup works to ensure the stability and reliability of the infrastructure systems that are vital to maintaining the national and economic security of the United States. The subgroup's focus areas are physical security, cyber security, and information analysis. The following TSWG-produced SCADA publications are available online:

• Securing your SCADA and Industrial Control Systems
• The Myths and Facts behind Cyber Security Risks for Industrial Control Systems
• Sustainable Security
• 21 Steps to Improve Cyber Security of SCADA Networks

For persons wishing a less technical overview of critical infrastructure SCADA security measures, the SANS Institute has published a white paper entitled Security for Critical Infrastructure SCADA Systems.