Sustained Outrage

Policing the Police: Motorcycles and riot batons

The Lincoln County Massacre wasn’t really a massacre.

No one was killed the night in April 1980 when members of two motorcycle clubs say they were beaten by State Police with riot batons as their children, wives and girlfriends watched. Still, that’s what some of the people connected to the incident call it.

The incident left an indelible mark on the bikers who were there. So much so, in fact, that West Virginia filmmaker Elaine McMillion is making a documentary about it.

Before talking to Elaine, I’d never heard of the White House Tavern or any of the events that happened there. When she told me the story more than a year ago, it got me thinking about how the same types of allegations and problems keep coming up again and again with the State Police. The idea of history repeating itself is not new, but learning about the bikers and what they say happened directly led to yesterday’s story on the State Police.

I helped Elaine get a couple of interviews with lawyers who were involved with the bikers’ case, and in return she gave me more information than I’ll ever be able to use in a newspaper story about the incident.

One more thing to note, Gazette columnist and reporter Rick Steelhammer wrote a great story on it back in 1980 titled, “Modern Day Western.” You can read it, along with other newspaper accounts on Elaine’s website here.

Below is a longer, but still very abbreviated, account of what allegedly happened that night:

April 20, 1980 – Members of the Brothers of the Wheel motorcycle club and other bikers camp out at the White House Tavern in Lincoln County. A local biker, who is not a member of the gang, wrecks his bike outside a nearby house.

The neighbor later testified that another biker who arrived on the scene, who was also not a member of the club, asked him if he knew another man had been killed that night. The biker was lying, no one had been killed. “He said, ‘If you want trouble, you’ll get trouble. There are 50 of us. You’ll never get through the night,'” the neighbor testified.

The neighbor called the police and at 2 a.m. about 20 state troopers clad in riot gear and wielding nightsticks arrive at the White House Tavern. Members of the Brothers of the Wheel said they were mercilessly beaten by the officers with riot batons as they lay in their sleeping bags and tents. They said their women and children were forced to stand in front of the bar and watch.

West Virginia State Trooper B.R. Lester later testified that he called for back-up after residents near the tavern complained they heard gunfire and felt threatened.

Fifteen bikers were arrested and charged with public intoxication and resisting arrest. The charges were dropped when the troopers couldn’t identify whom they arrested. A later Lincoln County indictment on unlawful assembly charges was also dropped.

Rickey Lester, president of the Bootleggers Motorcycle Club, which was also at the White House Tavern, said he held up his hands when he saw the police coming, according to a report published in the Gazette at the time.

“Then a guy hit me on the back of the head with a club and threw me to the ground,” he said. “When I was laying there, I heard screams and thuds. I was kicked and poked. I never said a word, but somebody said I was sassing someone and I got a good portion before I got in the car. … They threw my keys away. One guy stomped on my glasses, then wadded them.”

Members of Brothers of the Wheel sued 19 state police, claiming they were attacked without provocation. They sued for $1 million.

In 1982 a  federal jury awarded 10 members of Brothers of the Wheel and the Bootleggers a total of about $24,000 in property damages and medical and legal costs stemming from the incident at the White House Tavern. The jury did not award compensatory damages to the bikers.

Secret meetings, Dec. 3, 2010

Only one meeting in today’s issue of The State Register violated the public notice requirements of West Virginia’s open meetings law.

The agency responsible? The Department of Commerce’s training board.

We missed doing our rundown last week, but that edition of The State Register contained no meetings that violated the public notice requirements.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

New report questions W.Va. rulemaking process

A new report out this morning raises some interesting questions about the way West Virginia writes rules and regulations to govern everything from coal mining pollution to drug company marketing expenditures.

The discussion of West Virginia rulemaking is part of a broader, national examination of rulemaking in states around the country. The report, 52 Experiments with Regulatory Review: The Political and Economic Inputs into State Rulemakings, was put together by the New Y0rk University School of Law’s Institute for Policy Integrity.

Regarding West Virginia’s rulemaking procedures, the report concludes:

West Virginia’s regulatory review scheme concentrates virtually all regulatory power in the hands of the Legislature. While the arrangement is designed to ensure that regulatory decisions are made by democratically accountable legislators, the system often seems to take regulatory power away from independent agencies experts and exposes the rulemaking process to political influence.

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More information on the State Police lawsuit

As discussed in today’s story, The Charleston Gazette filed a lawsuit against the West Virginia State Police for reports produced by the department’s professional standards section on Wednesday.

This all started in May as an attempt to get a better understanding of how the State Police handle accusations against them.

And here’s a copy of the lawsuit filed yesterday.

The information the State Police released in this report says that 13 troopers were dismissed in 2009 based on sustained allegations, up from three the previous year. An additional 19 resigned prior to discipline. There were a total of 112 incidents where action was taken in 2009, according to the report.

The number of total complaints for the department has gone down, from 257 in 2007 to 165 in 2009. Of the 226 allegations contained in those complaints, about 50 percent were sustained and 24 percent were not sustained. Only 6 percent were exonerated.

But while the released statistics show the total number of complaints to be going down, the serious allegations of abuse keep coming.

Last month, the FBI confirmed they started an investigation into the Young Brothers.

These three stories from July do a good job of telling the other recent accusations:

W.Va. State Police stay mum on inquiries

Case closed in trooper rape accusation

Prosecutor not told ex-trooper falsified log

No judicial confirmations until after the election

In case you missed it, the 111th Congress adjourned this week to allow members to hit the campaign trail, meaning that there will be no movement on any of the 23 judicial nominees currently awaiting senate approval until after the Nov. 2 election.

In response, President Obama fired off a strongly-worded letter, expressing his disappointment that more of his nominees haven’t been confirmed. As he has previously, Obama specifically referred to Albert Diaz, a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit.

Politico.com and the New York Times’ political blog The Caucus both had items on the president’s missive.

Here’s the letter, via the New York Times:

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release September 30, 2010

TEXT OF A LETTER FROM THE PRESIDENT TO THE MAJORITY LEADER AND THE REPUBLICAN LEADER OF THE SENATE, AND THE CHAIRMAN AND RANKING MEMBER OF THE SENATE JUDICIARY COMMITTEE

September 30, 2010

The Honorable Harry Reid
Majority Leader
United States Senate
Washington, D.C. 20510

The Honorable Patrick J. Leahy
Chairman
Judiciary Committee
United States Senate
Washington, D.C. 20510

The Honorable Mitch McConnell
Republican Leader
United States Senate
Washington, D.C. 20510

The Honorable Jeff Sessions
Ranking Member
Judiciary Committee
United States Senate
Washington, D.C. 20510

Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.

The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.

Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.

Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.

We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.

Sincerely, BARACK OBAMA

If the president’s polite concern sounds familiar, that’s because it is.

Here’s a thought: What if, during the five-week recess, the president nominated a flurry of candidates for the federal bench? This would accomplish two things. First, it would preempt Senate Republicans for blaming the lack of confirmations — which, as I and others have noted before, is creating a judicial vacancy crisis — on the president and the relative scarcity of his nominations.

But more importantly, it would send the message that President Obama cares about the federal judiciary, that it is a priority for his administration, and he is not going to let the Republicans thwart his nominees just by using obstructionism to run out the clock.

Sen. Byrd: The road from Wolf Creek Hollow

photo by Jim Noelker

This is the closing chapter of Sen. Robert C. Byrd’s autobiography, “Child of the Appalachian coalfields“:

Having completed fifty years in Congress as of 2002, and with some years remaining in the eighth six-year term to which the people of West Virginia have elected me, I have chosen to close this story of my journeys. Never having forgotten my roots, I continue to be aware that my highest duty is to West Virginia and to the people of that state who have honored me with public office for more than a half-century.

My own less-than-modest beginnings and the poverty of my state during my boyhood years have never faded from my view, and it has been my constant desire to improve the lives of the people who have sent me to Washington time and time again. To them, I shall be grateful from the bottom of my heart as long as I live.

The road from Wolf Creek Hollow has been uphill and downhill, long and tenuous and winding — a road filled with indelible memories: the ghosts of vanished years, the faces of long gone and the voices long stilled. It was a road filled with hopes in the morning of life; preparation when the sun was at its meridian; and service in the long afternoon with lengthening shadows that stretch away to the hills of Night. To paraphrase Robert Frost, it has been a road “less traveled by,” and that has “made all the difference.”

“There is no writer that shall not perish;

but what his hand hath written endureth forever.”

— From The Thousand and One Nights

In this Feb. 6, 1979, file photo Sen. Robert Byrd, D-W, Va., plays the fiddle for his grandchildren as he relaxes at home in Washington. They are, from left, Mary Anne Moore, Erik Fatemi, Frederik, Frederik Fatemi, Michael Moore, Mona Byrd Moore and Darvis Fatemi.

Here’s one of Sen. Robert C. Byrd’s last “Byrd’s-eye View” newspaper columns:

This year, 2010, is the fortieth anniversary of the premier of John Denver’s musical tribute to West Virginia as “almost heaven.”

When I think of Denver’s classic song, “Take Me Home, Country Roads,” (which was co-written with Bill Danoff and Taffy Nivert) I think about the things that make West Virginia so unique. First, of course, is the kind and generous nature of the people of our beloved state. Next, I picture the beauty and serenity of our mountains. They seem sacred, and, in fact, mountains are a frequent location for events in the Bible, in both the Old and New Testaments. It was on Mt. Sinai that God revealed himself to Moses and gave Him the Ten Commandments (Exodus 19:16 and 20:17). God allowed Moses to view the Promised Land from a mountain. It was on Mt. Carmel where Elijah challenged the false prophets of Baal, and, on Mt. Ararat that Noah’s Ark came to rest (Genesis 8:4).

Some of the most important teachings of Jesus, as well as the critical events in His life took place in the mountains. The Transfiguration of Jesus, one of the most important Miracles, took place on a mountain, probably Mount Tabor (Luke 9:28-43). It was on Mount Olives that Jesus instructed His disciples (Matthew 24:3). The third temptation of Christ took place on a mountain, so that Jesus could see the kingdoms of the world. (Matthew 4:8-9). And, of course, Jesus delivered perhaps His most important Sermon, the “Sermon on the Mount,” from a hillside, where he also gave us the Lord’s Prayer (Matthew 5-7). Jesus gave His life for our salvation and was crucified on a hill, Golgotha (Calvary).

Throughout the Bible, examples of the powerful and mystical significance of mountains can be found. For example, Isaiah 25:6 tells us of the celestial banquet on Mount Zion that is a symbol of eternal happiness, and the coming of the Kingdom of God. And one of my favorite passages from the Bible, Psalm121:1, reads: “I will lift up mine eyes unto the hills, from whence cometh my help.”

Contemplating the use of mountains and hillsides as symbols in Holy Scripture, underscores what a special gift our mountains are for the people of West Virginia. Majestic, inspiring, and, at times, intimidating, our mountains remind us of the glory of the view after the challenge of the climb. Perhaps that is why West Virginians retain a stalwart and independent character, always inspired by possibilities and undaunted by difficulties.

This image from video provided by BP PLC early Wednesday morning, June 9, 2010 shows oil continuing to pour out at the site of the Deepwater Horizon oil well in the Gulf of Mexico. The cap placed on the ruptured well last week to channel much of the billowing oil to a surface ship collected about 620,000 gallons Monday and another 330,000 from midnight to noon Tuesday, according to BP. (AP Photo/BP PLC)

Sustained Outrage readers will recall that we reported last week that the U.S. Chemical Safety Board was refusing to investigate the BP oil disaster — easily the worst U.S. industrial accident since the board’s creation.

Well, that all seems to be changing now, following a letter today from the House Committee on Energy and Commerce, whose leaders  urged the board to reconsider and conduct a full examination of the Deepwater Horizon explosion that killed 11 workers and has caused such incredible damage in the Gulf and along the Gulf Coast.

Committee Chairman Henry Waxman and Subcommittee on Oversight and Investigations Chairman Bart Stupak noted that the CSB, because of its previous investigation of the March 2005 explosion that killed 15 workers at BP’s Texas City refinery, would be in a “unique position” to address questions about BP’s past practices and safety culture:

CSB identified cost-cutting, a lax safety culture, and production pressures from BP executives as factors that weakened process safety at the refinery and led to the explosion … CSB also compared the refinery explosion with a massive leak at a BP pipeline at Prudhoe Bay, Alaska, in 2006. CSB found ‘striking similarities’ between the reported causes of these two incidents, including a focus on budgetary concerns rather than sound risk analysis.

Interestingly, Waxman and Stupak also said in their letter that the CSB generally “scores” or ranks incidents like this based on a variety of factors as a tool for determining if the board will investigate. They asked the board to score the BP disaster and provide Congress with that score by next Monday.

In response, CSB Chairman John Bresland issued this statement:

It is my desire that the CSB do everything it can to facilitate the request and to undertake the investigation and determine what factors led to the explosion and failure of the blowout prevention system.

The CSB, a small agency, is currently engaged in numerous investigations consuming all of our investigation staff. However, I will be consulting immediately with the rest of the board and with key staff to determine how we may put together a high-performing investigation team.

Time for another look at stories that grabbed our attention this week.

Yum. That non-organic celery you’re eating comes with 67 pesticides, CNN
reports
from the Environmental Working Group. Also high on the dirty list:
peaches, strawberries and apples. But there is so much more.

Oregon’s solicitor general Jerry Lidz resigned in protest over the way the state attorney general’s office handled the investigation into an unwritten, handshake deal that allowed former University of Oregon football coach and athletic director Mike Bellotti to collect millions of dollars before leaving for ESPN, the Oregonian reported. Lidz’s wife, Melinda Grier, lost her jobs as the university’s general counsel after the details of the undocumented contract surfaced.

A federal judge dismissed extortion charges against two candidates in a Jersey City municipal election, ruling that they could not be charged with peddling influence in offices they did not hold, the Newark Star-Ledger reported. Louis and Ronald Manzo allegedly accepted a bribe from a government informant posing as a developer looking for building approvals, but they were not yet in office. Prosecutors argued that taking money and promising favors based on the power they hoped to gain after election was enough to convict them under the Hobbs Act, but U.S. District Judge Jose L. Linares disagreed.

Money and elections

I didn’t post this until after yesterday’s primary was over, because I didn’t want anyone to think that I was trying to influence voters in any way. But the National Institute on Money in State Politics released a couple of interesting studies recently that examined the intersection of money, incumbency and politics in state legislative elections.

Incumbents who also had a fundraising advantage won 96 percent of the time in the 2007-08 election cycle, according to Peter Quist’s study, The Role of Money and Incumbency in 2007-2008 State Elections. In one-third of the races, incumbents ran unopposed.

Challengers who failed to raise more money than the officeholder won only 8 percent of the time. However, when they did manage to build a bigger war chest, challengers won 53 percent of the time, according to the study.

Moreover, the success rate for incumbents has been slowly creeping upward, from 89 percent in 2001-02 to 92 percent in 2003-04 and 2005-06 to 94 percent in 2007-08. The winning percentage for candidates with the money advantage has been relatively stable, though: 82 percent in 2001-02; 84 percent in 2003-04; 83 percent in 2005-06; and 80 percent in 2007-08.

The other study, Tyler Evilsizer’s Competitiveness in 2007-2008 State Legislative Races, notes that only 22 percent of candidates nationwide had a monetarily competitive race, i.e. where the candidates raised similar amounts of money.

As for West Virginia, roughly a quarter (26.5 percent) of the 117 legislative races in 2008 were monetarily competitive, while 44 percent weren’t competitive, and 29 percent were uncontested. You can see a national map here.

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