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Article posted Dec 27 2012, 5:25 PM Category: Commentary Source: William Norman Grigg Print

Prosecution as Persecution: The Carol Asher Case

by William Norman Grigg

"Hi, my name is Larry Wasden," explained the short, stocky man, flashing a politician's practiced smile and extending a hand. "I'm the Attorney General."

"Mr. Wasden, my name is Will Grigg," I replied, shaking his hand. "Several years ago you tried to put a 66-year-old retired nun named Carol Asher in prison for fourteen years because she acted as a conscientious juror. Have you ever apologized to her for that abuse of discretion?"

My ice-breaker caused Wasden's smile to evaporate, and it was quickly replaced with an expression of perplexed surprise.

"What -- what abuse of discretion? What case are you talking about?" he stammered.

"Carol Asher is a retired nun from northern Idaho who was called to serve on a jury in a narcotics case," I explained. "She was one of several jurors who voted to acquit, and during the deliberations -- made in the confidentiality of the jury room -- she apparently made some comments about the fully-informed jury principle. This was seen as a violation of assurances that she would be bound by the judge's instructions. After the case was dismissed, one of the jurors reported her to the prosecutor -- and your office filed felony perjury charges against her."

"Well, I don't remember any of the details of this matter," Wasden replied as he started to sidle away from me.

"Perhaps you should re-acquaint yourself with them," I suggested.

"I don't really see any reason to," he said, walking away while displaying a dismissive smirk.

The occasion that brought about this brief but telling conversation was a December 12 meeting held at the Portia Club in Payette, Idaho to discuss the state's open records and open meetings law. Wasden and several of his associates -- people whose livelihood depends on official opacity, not public transparency -- were present to teach us how to ask just the right questions in order to get the self-serving answers they were willing to provide.

Wasden was obviously caught off-guard by a polite but pointed question, and more than likely offended by it. After all, a meeting to discuss the open records law was hardly the proper forum at which to demand accountability from a public servant such as himself.

My only purpose in attending the meeting was to ask Wasden about the Asher case. I knew he would be in attendance, and intended to confront him about his misconduct – but since he was the one who approached me, I can’t honestly be accused of ambushing him. Our conversation took place about five minutes before the meeting began, which meant that I was able to devote most of my evening to more productive pursuits.

Wasden was utterly mystified by the mention of the Carol Asher case, which was the source of considerable controversy in Idaho back in 2006. He honestly didn't remember who Carol Asher is, which is understandable. But he absolutely didn't care about what his office did to her, which is unforgivable.

“It’s interesting that Mr. Wasden doesn’t remember me or anything about my case, because he was certainly aware of it at the time,” Asher told Pro Libertate. “And after the charge against me was dismissed I wrote him a long, polite letter letting him know that I held no rancor toward him, and explaining why I took the stand that I did. He never responded to my letter.”

If I had inflicted needless misery on an innocent, law-abiding, 66-year-old woman, sleep would be a stranger to me until I had done everything possible to make amends. Beyond what I've learned from the public record and a very brief conversation I know nothing of Larry Wasden. The fact that he has forgotten everything about his attempt to imprison Asher for life suggests to me that his is the untroubled sleep known only to the most innocent of children, and the most incurable of sociopaths.

In late 2005, Asher was called to jury duty for the narcotics trial of William Edward Clark, a young man of Indian ancestry who lived in a northern Idaho village called White Bird. Clark was employed at a local restaurant. He also had a police record replete with petty charges of the kind that suggested he was the focus of frequent and largely unwarranted police attention.

One afternoon the previous March, Clark was given the keys to the company vehicle – an old pickup truck – and sent to Grangeville with a large load of aluminum cans to be recycled. He stopped at the Tolo Lake Mammoth Replica, locked the truck, and went to see the exhibit. A Grangeville City Police Officer drove by and spotted the truck.

At the time, Clark was the subject of a “fugitive warrant,” but the available record in the Idaho Repository doesn’t clearly state why. He was sentenced to probation on a misdemeanor battery charge, and then slapped with a statewide “failure to appear” bench warrant that appears to have been revoked in January. In any case, the officer recognized either Clark or the vehicle he was driving, executed a U-turn, and pulled in behind the truck.

When the officer approached Clark, he demanded the keys in order to search the truck. Clark quite properly refused to turn over the keys, pointing out that the pickup was, in effect, a company vehicle that didn’t belong to him. The officer called for backup, and an Idaho County Sheriff’s Deputy soon arrived. The two of them ganged up on Clark, seized the keys, and searched the truck.

On the dashboard of the truck the officers found a CD case containing a tiny ziplock bag in which was hidden .15 of a gram of meth, which had an estimated street value of about five dollars.

“No physical evidence or eyewitness testimony connected Clark to the drugs,” Asher recalls of Clark’s two-day trial. “The prosecution wasn’t able to demonstrate that Clark was aware that it was in the vehicle. Since it was used by many other people, and the drugs were very carefully hidden, there was plenty of room for reasonable doubt. And since the search was clearly illegal, there wasn’t really any reason for the arrest in the first place. But the court-appointed defense attorney just sat there like a stump and didn’t raise the issue, and the trial judge wouldn’t allow jurors to raise it, either.”

In his smug assurance that the case was a slam-dunk, the Idaho County Prosecutor Kirk MacGregor didn’t bother to prove it. After all, Clark was a socially marginal Indian kid with a bad reputation and a growing rap sheet; his accusers were two valiant defenders of the public weal; and besides, this was a drug case, which means that the defendant simply must be guilty of something.

What MacGregor didn’t realize is that there was at least one member of the jury who intended to force the state to prove its case against the defendant.

Prior to the trial, Judge John Bradbury had informed the jurors that they would be able to submit questions directly to him.

“Each of us was given a notepad on which to write our questions, and several of them were given to Judge Bradbury,” Asher relates. “All of them were read by the judge verbatim – except for the two I submitted, which he paraphrased and then dismissed.”

During the testimony of the two police officers involved in the arrest, Asher asked the same question: “In your understanding of the law, Officer, was it lawful and proper to force a search of the defendant’s pickup without first obtaining a warrant?”

“The first time I posed that question, rather than reading it aloud Bradbury simply said that a juror had asked about the legality of the search and he said that at some point prior to the trial it had been `agreed’ that the search was legal,” Asher recalls. “The second time he said something to the effect of, `There’s a juror here who is still having trouble regarding the legality of the search. That matter is decided and must be left aside.’”

When the jury began its deliberations, Asher was amazed – and somewhat disgusted – by the eagerness displayed by the other jurors to offer an uncritical ratification of the prosecution’s case.

“I listened to various initial comments from at least half of the jurors,” she summarized in an affidavit filed prior to her own trial in 2006. “Rather than focusing on real evidence presented against him (or the lack of it), the young man was being criticized for everything from his casual dress to `looking cocky’ to his (supposed) cocky eye contact and confident smiles he frequently directed to members of the jury.”

When it was Asher’s turn to speak, she expressed “concern about what seemed to me a wrongful search on the part of the police. The jury foreman then reminded me that the judge had ruled out the matter of the search, and that we were not allowed to consider it.”

Displaying the dutiful docility so commonplace among collectivist drones, the foreman insisted that the proper role of the jury was to act as an instrument of state power, rather than an impediment to it. Asher tried to remind her fellow jurors that their duty was to follow the law, rather than ratify the prosecution’s case.

“I can’t take my orders merely from a judge, but am bound by a higher authority to render fair and just judgment according to the dictates of my own conscience in trying to protect the rights of the accused,” Asher explained.

“Well, then, it looks like you could be facing big trouble here,” sneered the foreman. “You just could be charged with perjury.”

After taking comments from the other jurors, the foreman called for a vote. Eight members of the panel voted guilty; Asher and three others voted to acquit. The hung jury resulted in a mistrial.

As soon as court was adjourned, the foreman – in violation of the confidentiality of jury deliberations – did his duty to the State by reporting Asher’s comments to MacGregor. The vindictive functionary immediately contacted Wasden and demanded that the State of Idaho file a felony perjury charge against Asher. This was clearly an act of petty retaliation. It was also an actionable instance of malicious prosecution for which neither MacGregor nor Wasden has ever been held accountable.

There is no legal basis in the State of Idaho for the prosecution of a juror who ignores a judge’s instructions regarding the law. Although the Idaho Code dictates that the court will “decide all questions of law which may arise in the course of the trial,” it also states that the judge “can give no charge to the jury” – in other words, he cannot bind them to his interpretation of the law.

Idaho’s official Guide for Jury Deliberations repeatedly and explicitly state that once the jury begins its deliberations, it has plenary authority to decide the case as it sees fit. The purpose of a judge’s instructions, according to the guide, is to “tell you if there are special rules or a set process you should follow. Otherwise, you are free to conduct your deliberations in whatever way is helpful.”

Some measure of the poverty of the state’s case against Asher can be seen in the haste with which it was dismissed by Magistrate Judge Michael Griffin following a March 7, 2006 evidentiary hearing.

“I’m pretty sure that the charge was dismissed so quickly because they wanted the issue of fully-informed jurors to go away,” Asher observes. “The courtroom was full the day of the evidentiary hearing, and I’ve been told that the court had received hundreds of phone calls from people who were really upset over what was being done to me. It seems clear that the people behind the prosecution simply wanted the matter to disappear and be forgotten.”

Carol Asher was neither the first nor the only woman face a “perjury” charge for thwarting the punitive impulses of an ambitious prosecutor. Sitting next to her in the Grangeville courtroom on March 7, 2006 was Colorado attorney Paul Grant, who had represented Laura Kriho, another woman who had been maliciously prosecuted for exercising her authority as a fully informed juror in the 1996 narcotics trial of a 19-year-old girl charged with possession of methamphetamine.

Along with other potential jurors, Kirho was asked by the judge if there was “anything” in her past that “would interfere with your sitting as a fair and impartial juror.” She didn’t disclose that as a teenager she had received a deferred sentence on a minor drug charge, which was subsequently dismissed (but not removed from the record – nothing ever is). She also supported both drug de-criminalization and jury nullification.

During jury deliberations, Kriho annoyed the other panelists by casting doubt on the reliability of the chief prosecution witness – the arresting officer in the case. She also pointed out that the likely sentence seemed wildly disproportionate to the offense. One juror sent a note to District Judge Kenneth Barnhill demanding that Kriho be dismissed. This led to a mistrial – after which a juror contacted the judge to accuse Kriho of conspiring to hang the jury by not disclosing her beliefs.

Initially charged with felony perjury, Kriho was acquitted of that offense but found guilty of “contempt” and fined $1,200 by Gilpin County Judge Henry Nieto.

As Paul Grant pointed out, Kriho was the first American to be convicted of “the newly minted crime of failure to volunteer information during jury selection. No longer is it enough to honestly answer the questions you are asked; now you also have to answer the questions you were not asked, but that you `knew’ the judge wanted answered.”

This was the supposed crime for which Larry Wasden wanted to imprison Carol Asher – and the struggle to beat back that spurious prosecution cost her thousands of dollars she didn’t have.

“At the time, I was 66 years old, and although I’ve tried to take care of myself a 14-year sentence would probably have meant that I would have died in prison,” Asher pointed out to me.

This isn’t to say that Wasden is incapable of exercising discretion, and modulating his zeal for justice, as he pretends to understand it, on behalf of first-time offenders. About a year after he tried to arrange for Asher to finish her mortal days in prison, Wasden approved a ridiculously lenient sentence for Kevin Buttars, a former Montpelier, Idaho Police Officer who beat, choked, and sexually assaulted a man named Jared Finley.

Given that he was armed and committed his crime with the aid of several armed colleagues, his act qualified as aggravated battery under Idaho law, for which the prescribed penalty is up to fifteen years in prison. (By itself, the chokehold he inflicted on Finley constitutes “attempted strangulation,” which is also punishable by a term of fifteen years.)

At the very least, Buttars was guilty of “unnecessary assault by a police officer,” which for some reason is considered a misdemeanor in Idaho. The specified punishment for that crime is a year in jail and a $5000 fine. This is a lighter punishment than the typical Idaho resident would receive for driving with a suspended license.

Wasden signed off on a plea deal under which Buttars served two weeks in jail, paid a $500 fine and court costs, and spent a year on probation – time he put to productive use by filing a “wrongful termination” lawsuit against the City of Montpelier.

Lawrence Wasden is the kind of person who would be expansively accommodating toward a violent degenerate in a government-issued costume, while seeking to imprison an elderly woman for the supposed crime of being a conscientious juror. He splendidly embodies one of my oft-repeated maxims: People who don’t despise prosecutors simply aren’t paying attention.
_
William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.





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