24thState

How To Lose An Assault Case Even When You Have Video

The Gladney Assault trial prosecutor was had never run a jury trial before.   The defense lawyer was one of the best in St Louis.  The trial was delayed for two years, and then rushed through to allow the judge to go on vacation.  What did we think was going to happen? 

Here are some basic mistakes the rookie prosecutor made:

A) Never ask open-ended questions with no good answer. 

The prosecutor asked McCowan why he didn't turn the other cheek when Gladney struck his hand. 

This question suggests that Gladney did strike McCowan's hand, and it was McCowan's Christian duty not to respond.  McCowan's response was that his cheek had not yet been struck, and he got a laugh.  He humanized him testimony, while the prosecutor merely looked foolish. 

Here's what he should have asked. 

1) Two witnesses stated you struck Gladney.  Did you hit him?

2) Did you kick him? 

3) Did you throw him to the ground? 

4) Did Perry Molens strike him?

5) How many times did Perry Molens strike him?

These questions give the story a visual component.  They do not allow for clever responses.  They force the witness to answer a question, and from that answer, the jury can tell how honest the witness is.  Do they answer directly? Do they make excuses?  

Once a direct question is asked and answered, the prosecutor has the leeway to respond with public statements, like the radio interviews McCowan gave stating he was bumrushed and driven to the ground. The jury never got to hear McCowan on KMOX stating he was attacked.  Instead, they heard that Gladney started a physical altercation that was escalated.  Self-defense was the theory D'Agrosa was pushing.  In failing to get direct answers in the midst of a narrative, the prosecutor let the story play out as self-defense, rather than assault by two huge men.

B) Medical records

    D'Agrosa entered the only medical records into the case, which means the only evidence of injury was on the side of the defense.  In addition, D'Agrosa made the claim that Gladney was simply trying to cash in on a fight. 

The prosecutor really dropped the ball here, as the medical records, both from the hospital and from Gladney's doctor, would show a prescription written for powerful pain medication.  Hospitals don't write pain medication prescriptions for fake injuries.  They give out Tylenol, and may give a single pill, but they don't write pain meds for no reason.  The jury never knew this. 

The pain meds were brought up by Gladney, in his description of why he was in a wheelchair during the next rally.  That wheelchair, a bad visual prop by David Brown, coincided with the neck brace Kenneth wore from his neck surgery a few days prior to the trial to make him look like a con artist.  If the extent of his injuries were at least offered, McCowan wouldn't have been the only one at trial with proof of injury.

C) Prosecuting The Case As One Incident

Perry Molens is seen on video grabbing Kenneth Gladney and pulling him to the ground.  There is no question this happened.

 

Once the video was released, and put into evidence, the prosecutor had what should have been an easy conviction. 

Sandra Himes has stated that she was helping Kenneth Gladney to his feet, at which point, Perry Molens yanked him down to the ground again.  This was a separate incident from the original attack, which occurred back by the button board. 

Molen's attack was bad enough that the Ponytail guy told Molens "That's not the way to do it," and Cheryl Johner told Molens to get off of Gladney, calling Molens a "bitch."  Neither Ponytail or Johner testified at the trial.  Johner, moments later would punch Kelly Owens in front of a police officer and was immediately arrested for assault (she pled guilty).  Johner, who punched Kelly Owens, was incensed enough to tell Molens not to attack Gladney.

That never made it to trial either, but was instead lumped into the entire event.  In short, clear video evidence of Perry Molens assaulting Kenneth Gladney, with four of five witnesses around, was brushed away as being part of the overall incident. 

Was It A Set-Up?

Some people are claiming the case was thrown, or that it was a set-up, or that the prosecutor was in collusion with the defense.  That simply isn't true.  Despite a poor trial, this case was tried, and evidence was presented.  Criminial trials are hard for a reason - as well they should be.  Prosecutors lack the resources to investigate on their own, and count on the police to do the heavy lifting.  For all of our complaints about the conduct of the trial, this was only an ordinance violation in a county where murders are still regular occurrences. 

It was not a conspiracy to prevent justice.  It was an issue relegated to a minor status so that no matter the outcome, it wouldn't cause too many problems for Pat Redington, Bob McCulloch, or Charlie Dooley. None of those three would endanger their power base with blatant criminal actions.  Attorney Paul D'Agrosa would also not be a party to such a thing.

But they didn't have to.  They could act well within their power to make this political attack a non-issue, one starved of resources and attention.  McCulloch, who prosecutes people for stepping on grass and selling automobiles out of a garage, wouldn't go near this.  Redington's office put the minimal effort into investigation, held onto charges, and then applied no pressure to expedite the case.  And yet, even with that, SEIU was forced to spend more than $10,000 on a case where two former union members (Local 2000 has been closed down) were charged with an ordinance violation. 

Even that small concession only happened with the publishing of the video, the publishing of the police report by Big Government, and the airing of stories from KMOX asking why charges had not been filed.  The day before the charges were filed, Kenneth Gladney was stood up the Patricia Redington's office.  The week before, Patricia Redington's office claimed to Kelly Owens that investigations would not start until after charges were filed.  The day the KMOX story broke, Patricia Redington made the statement that investigations and witness questioning were underway.  She filed two days later, in the late afternoon of the Wednesday before Thanksgiving, exactly as was predicted in September by local political operatives.  

It is worth nothing again how extraordinary a $10,000 fee is for this case. SEIU was so committed to this case, they purchased the best defense attorney they could find.  What chance did Kenneth have?    

We are forced to recognize that no person without substantial resources and pull has a chance in a justice system controlled by a Democratic party machine.  As Kenneth said so poignantly, he's just an average citizen.  

This trail was not a mistake in justice system.  It is how it works.  If McCowan and Molens had attacked Gladney outside a nightclub, they would have been found guilty.  That they did so while under contract with a powerful government union made all the difference. 

That is the battle.  That is the lesson.

 

 

 

The Mysterious PonyTail Man Who Never Speaks

Who is this man? 

The outline of the Ponytailed Jean Man, standing next to the SEIU Defense Witness, is still the most puzzling part of the night. 

Ponytail is in the moogrogue video, stepping over Elston McCowan on the ground.  He clearly was involved in breaking up the altercation.  You can hear him tell Perry Molens "THAT'S NOT THE WAY TO DO IT," as Perry grabs Kenneth from behind and throws him to the ground. 

Cheryl Johner, the OFA member who pled guilty to assaulting Kelly Owens, also yells at Perry Molens, telling him to get off Kenneth.  

These two did not speak at the Gladney trial, nor were they interviewed by police or prosecutors.  They were the most likely witnesses for the defense, as they were close enough to be there and in fact were involved in breaking it up. 

And yet, no one heard from Ponytail, who stood silently by and said nothing to the police. 

He really is an interesting character, because SEIU claims Ponytail was protecting McCowan.  Once the video was published, SEIU broke up screen captures of the event and tried to paint Gladney as the aggressor in the video.

His testimony would have been valuable, as he was a central figure in stopping the assault.  While the defense did not call him (and that was their right), it would have gone a long way to have him cross-examined under oath, as it was clear he saw Molens and McCowan attacking Kenneth.  His statement, "not the way to do it," suggests that he would not have been a sympathetic witness.

As we look at the trial, we can see D'Agrosa doing his job, earning his $10,000 paid by SEIU trial fee for an ordinance violation. We can't pretend the trial tells the truth.  Molens and McCowan were not found innocent.  The jury said the prosecutor didn't convince them based on his case. 

There's a world of difference in those two statements.

Defense Witness For Elston McCowan Gets A Helping Hand From Police

An earlier post helped identify the defense witness in the Gladney beating trial as an SEIU woman who can be seen entering the video after the initial assault.  In addition, the video begins further back, and then zooms in. 

The SEIU shirted defense witness, a heavy set woman in a cane, walks into the frame after David Brown and Kelly Owens arrive, neither of whom saw the initial assault.  To be an eyewitness, she would have had to be walking with Elston and Perry when the two decide to confront Kenneth Gladney. 

The videographer, moogrogue, was also closer to the action than the defense witness.  He had time to flip on his camera, point it at the attack, and zoom in, prior to the defense witness arriving at the scene. 

Compare that testimony with that of two prosecution witnesses at the scene, who were close enough to break it up, and who gave immediate testimony. 

We don't have trial transcripts yet, but we do know that the SEIU defense witness did not speak to police or the prosecutor's office to provide evidence.  Her testimony was two years old, and was not researched in advance by the prosecutor.  Had he done so - had he utilized the video, pictures and articles provided to the first prosecutor, he would have known what to say to her.  His strongest cross examination was to ask her why she didn't speak up that night.  A verbal report from the trial states the Defense Witness was scared to speak to police because they were macing people.   There was one person maced, Javonne Spitz, who resisted arrest after barging into the scene and confronting officers. 

So did the defense witness have a right to be scared?  Rather than trust her memory two years later, let's take a look at video from that night. 

 

As you can see, the defense witness is standing next to Elston McCowan, being assisted in making a phone call by a St Louis County police officer.  She had the presence of mind to ask him to shine a flash light on her phone, but not to tell him that she was a witness.  From start to finish of the police arriving and arresting McCowan and Molens, the witness was there.  At no time did she speak up, even when she had the opportunity to.  Three videos form that night show multiple angles of her standing, mute, while her friends are arrested to assault.  

This same lady is the one who Elston says, "you'll protect me."  She never tells him that she saw Gladney attack him.  She stands around, offering comfort, like someone who walks up to a scene after it happens.  Which from the moogrogue video, suggests that is exactly what happened. 

 

Gladney Assault Trial: Is This The Defense Witness?

Yesterday's trial resulting in a not guilty verdict for Elston McCowan and Perry Molens hinged on the testimony of witnesses. Setting aside all of the peripheral evidence, the case came down to two witnesses for the prosecution stating they saw McCowan and Molens attack Gladney, versus a witness for the defense who made the claim that Kenneth started the "fight" by slapping the hand of Elston McCowan.

It was up to the jury to determine which witness testimony was most reliable.  The $10,000 defense strategy was not to claim Elston was assaulted and did nothing.  It was to claim Elston and Perry acted in self-defense.  Note this is in direct conflict with the statements Elston has made for two years of being attacked and not fighting back. 

It was their legal right to change the story for the trial, but bringing in a new witness is a different matter. As we pointed out years ago, there were no other witnesses to the beginning of the assault.  The two people closest were Cheryl Johner (who pled guilty to assault of Kelly Owens), and the ponytailed man in jeans seen standing over McCowan in the opening sequence of the video.  Neither testified.

Instead, there was a defense witness, still unnamed, who claims to have seen the beginning of the altercation.  She was decribed as heavyset, with a cane. 

Do you mean this woman?  The one seen walking into the scene after the assault had taken place?  The woman who slowly moves forward and who gets to the scene after David Brown (blue shirt), who did not see the initial assault?  This is the witness? 

The full video:  You can see her just a few seconds in, clearly getting to the scene after it occurred. 

 

As we verify the identity of this witness that stepped forward two years after the fact, it seems fair to question if she perjured herself, seeing as she arrived after the assault occurred.  And if so, what can be done about it?

 

 

Conundrum for Thee, but Not for Me

Many progressives pretend to be pro-individual rights and pro-civil liberties, which could not be further from the truth.  Powers (state or federal) run contrary to rights, and the imposition of governmental power to ensure a "right" (as in Obamacare) highlights the lack of political logic among progressives.  For some reason, classical liberals and "libertarians" that vote Democrat allow the wool to be pulled over their eyes when it comes to progressive logic, or the lack therof, simply because they disagree with social conservatives.

Oregon provides an interesting case for us.  Last week, in Willis v. Winters, the Oregon Supreme Court denied law enforcement the ability to refuse Conceal & Carry Licenses (CCLs) based on the applicant's privilege to medical marijuana under state law.  And while federal law, under 18 U.S.C. § 922(g)(3), prohibits possession of firearms by users of controlled substances (including marijuana), having a CCL does not necessarily imply possession of a firearm, nor is Oregon obligated to enforce federal drug law under the anti-commandeering principle.  Anti-commandeering provides one of the principles behind Prop C in Missouri.  The federal government cannot force Missouri to enforce the individual mandate, just like the federal government cannot force Oregon to enforce drug laws.  

Now, none of this is to say that Oregon could not deny CCLs for medical marijuana users.  States have general powers, as opposed to the limited powers of the national government, and have far greater latitude in the areas of safety, health and education, not to mention contract and tort law.  If Massachusetts wants Romneycare, then Massachusetts can have Romneycare, but the rest of the nation is under no obligation to bail Massachusetts out when Romneycare fails miserably.  If Minnesota wants to ban gay marriage, then Minnesota can ban gay marriage, but Massachusetts is under no obligation to follow suit.  If Oregon thinks medical marijuana users are capable of using a CCL responsibly, then so be it.

The point I am trying to emphasize here relates to the inconsistency in progressive logic.  Under tea party logic there is no inconsistency in the Oregon decision.  In this instance, Oregon is foregoing its broader powers to provide greater protections of individual rights.  Social conservatives may disagree on policy grounds, but cannot on constitutional principles.  Progressives decry the 2nd & 10th Amendments, and will probably ignore the Oregon decision altogether.  This does not fit their narrative because it broadens a right they disagree with (2nd), and diminishes a federal power (regulation of interstate commerce) under a correct interpretation of constitutional federalism (10th).

Progressive belief in individual rights is a farce, and Obamacare provides the perfect vehicle for an example.  There is no principle in individual rights underlying Obamacare, rather progressives support the general policy of federal control in interstate commerce at the expense of the 10th Amendment.  The classical liberals and "libertarians" that support Obamacare for altruistic reasons do so at their own peril because powers run contrary to rights.

It may not be a good idea for states to strike down all regulations, as much its a bad idea to impose ridiculous amounts of regulation (like with sudafed).  In that sense, the social conservative can be as wrong-headed as the progressive.  Social conservatives can be just as bad when it comes to the imposition of social conservatism at a national level.  But where progressivism will always be wrong with its focus on national politics, social conservatism will always have a leg to stand on in state politics...just not in Oregon.

UMSL Students Bear False Witness To Protect Violent Commie Professor

Left wing blogger Adam Shriver is trying to spin another story without having all the facts.  On Sunday, he interviewed two "students" from UMSL who were in class when their professor assaulted Adam Sharp.

Up first was an anonymous woman who used charged language to assert that Sharp tried to violently enter the classroom, but was held back by Giljum, who was trying to protect his students.  She referenced Virginia Tech, and stated Sharp was a crazy man who screamed outside the classroom. 

A great story, except it was completely made up and is contradicted by the video evidence.  Shortly after Giljum broke Sharp's camera and took a swing at him, Sharp started filming with his backup camera. The 25 seconds of video below show Giljum returning to the classroom, yelling "Get Out," then slamming the door. 

In the video, Adam Sharp doesn't say a word.  He merely holds up the camera to get video of Giljum, who has just attacked him.  There was no screaming (from Sharp), no attempt to get into the classroom, and in fact, nothing but recording Giljum's eratic behavior.

 

A second guest on the radio show claims he heard a noise outside, but doesn't mention any kind of violent struggle at the door of the classroom.  That's because it didn't happen.  

Both students omit important facts. Giljum took a swing at Sharp. He entered the classroom and announced to the students that he had done so, and that class was dismissed.

Back to the interviews.  It's strange that two students would omit the fact that Giljum admitted to the assault, but would play up a false violent confrontation to protect Giljum. It's also strange that they don't discuss Giljum being handcuffed and taken to the police station. It's not strange at all that Shriver would try to distort a story, and that the story would be picked up by FiredUpMissouri and Media Matters. Is Shriver being funded to by one of those organizations specifically to manufacture these falsehoods?

The point of Shriver's story was to put the blame on Sharp. Shriver's tweets and posts all talk about breaking the law (the law of Trespassing).  He fails to note that Giljum was placed in handcuffs for assault.  What do you expect from someone like Shriver?  He hates Sharp, and probably still giggles about his friends buying a domain name that points to NAMBLA (yes, progressives bought a domain name for a local tea party site and pointed it to a criminal man-boy love site).  With today's release of video from Judy Ancel discussing how to drive non-union competitors out of business, the veil has been pulled back on the Gramscian damage at UMSL and UMKC.

And no amount of lies from the Left will save them now.

Related articles

• UMSL Lecturer Don Giljum Assaults Citizen Journalists. Police Confiscate Video. (sharpelbowsstl.blogspot.com)
• Labor Notes: Union Official, College Lecturer Don Giljum Resigns After AFL-CIO Pressure, UM-KC Won't Rehire Next Semester (biggovernment.com)
• Turning 'Non-Violence' Into 'Violence': The Quote That Wasn't (biggovernment.com)
• Ameren Responds To Don Giljum's 'Sabotage' Tactics (biggovernment.com)
• Radicals Resign Because They Were First Tolerated (24thstate.com)
• Taking Bets On Whether the Media Will Cover Marxist Union Instruction (bigjournalism.com)

Third Court Date Set for Elston McCowan

I just received word that Kenneth Gladney's alleged assailant, Elston McCowan, has a trial date of July 11th, 2011. McCowan's first court date last March was postponed to last October. The October date was also postponed. Gladney was allegedly attacked by McCowan after a Russ Carnahan townhall on August 6th, 2009.

AG Chris Koster Achieves an #EpicFail on Challenging Obamacare

Missouri progressives are in a tizzy over Koster's amicus brief challenging Obamacare, going so far as to call him a DINO (don't they realize that socialists are democrats in name only?)  Well, apparently they read the amicus brief as closely as Congress read the Obamacare bill; that is, not at all.

Tucked away in the middle of the brief, Koster lays out arguments the government could try to use to achieve constitutionality of the presently unconstitutional Obamacare:

Third, and despite undermining the historical continuity of Commerce Clause precedent, a bright-line exception could be constructed to aggressively limit this Court’s decision solely to the healthcare arena. Such an exception might include the following limiting considerations: (a) the congressional regulation is in the area of healthcare in which nearly all individuals are certain to enter interstate commerce because of the need for medical treatment at some point in their life; (b) the regulation of healthcare is necessary because individuals are highly likely to “cost-shift,” where the uninsured impose on others the burden of paying for their choices; and (c) the economic impact of the regulated choices affect a significant portion of the national gross domestic product and are beyond dispute.

Did you get that?  We can just carve out an exception to constitutionality under commerce clause jurisprudence for health care.  Great idea!  Let us set a precedent for the courts to read in unconstitutional powers to the Constitution.  Shoot, we might as well end this farce of constitutional governance altogether!

Koster also states that Prop C comes into direct conflict with Obamacare under the Supremacy Clause (presumably, the basis of his brief).  We addressed this many months ago, but judging from Koster's constitutional knowledge under the above quoted paragraph, I am not surprised he doesn't get it.  In fact, I would venture a guess that he barely understands the legal reasoning within his brief, and that he had little role in drafting it other than instructing the draftees to make sure they included arguments in support of Obamacare.

Koster furthers this joke by suggesting the lack of a severability clause should not preclude the courts from deeming the individual mandate severable, should it be found unconstitutional.  The argument goes that when Congress is silent on an issue the courts should not determine Congress had intent one way or the other.  The problem with that reasoning is that Congress has deemed it necessary to include severability clauses before.  Congress should not get a presumption of severability because they forgot to include the provision.

Bottom line, this is nothing more than a political publicity stunt.  If Koster was serious, he would file a case in Missouri, which would eventually go up to the 8th Circuit Court of Appeals.  This is Koster trying to win some conservative votes for his reelection.  He deserves no praise for this amicus brief, and everyone ought to think twice about any "conservative" praising Koster's actions.

Missouri needs a lawsuit filed in opposition to Obamacare; not a crass political stunt from a party switching political hack.

AG Chris Koster joins Florida v US Department of Health and Human Services

Attorney General Chris Koster (D-MO) has finally recognized the will of the people of the Show Me State and filed an amicus brief on the side of Florida in that state's case against Obamacare. The brief as well as the cover letter Koster sent to Missouri Senate President Pro Tem Robert Mayer (R-MO) and Speaker of the House Steve Tilley (R-MO) is below.

Amicus Brief - Federal Health Care - from Mo. Atty. Gen. Chris Koster

Kinder's Obamacare Gambit for the Governorship

Image by mstabbycat via Flickr

Missouri's Lt. Gov. Peter Kinder (R-MO) expects the US Supreme Court will settle his health care legal challenge:

Kinder, who spoke at a Monday meeting of the Rotary Club of Cape Girardeau, said a judge gave the U.S. government until Jan. 18 to respond to his lawsuit, which was filed in July at the Rush H. Limbaugh Sr. U.S. Courthouse. But he thinks whatever happens at the trial level, the case will make its way past the 8th Circuit Court of Appeals and on to the U.S. Supreme Court.

"They're going to ultimately decide the constitutionality of the law," said Kinder, a Republican. "It's a classic case where the Supreme Court says 'We're going to resolve the difference.' Hopefully, we'll be knocking on the door of the Supreme Court by 2012."

And Kinder will be knocking on the door of the Missouri governor's mansion in his bid to oust Democrat Jay Nixon. Kinder's fight against the Federal take over of health care will help him in that race.