Law enforcement agencies often rely on Confidential Informants to investigate criminal matters. Many times crimes cannot be solved if those who commit the crimes or those they voluntarily tell about the crimes do not talk to the police. It is a truism that it is hard to catch a fish that does not open its mouth.
As long as the police are simply investigating a crime there is no reason why “anonymous sources” should not be mined for information. However, once a law enforcement agency decides to ask a judge for permission to arrest someone or search someone’s home or business, the basis for the judge to determine probable cause must comport with Constitutional standards. And there are both the U.S. Constitution and the Indiana Constitution to consider.
No longer can “anonymous sources” be cited as a basis for probable cause but Confidential Informants may be used as long as the police support the C.I.’s ability to actually know the evidence attributed to them by setting out the facts establishing the C.I.’s ability and opportunity to observe or know of the crime in question.
And if the case goes to court the C.I.’s identity may be ordered disclosed by a judge. In other words, a C.I. must be an actual person who truly had direct knowledge of the crime and the involvement of the defendant who was arrested or whose premises were searched. In my experience as a prosecuting attorney for seven years, a practicing attorney, and a judge for thirty-eight years, when a law enforcement officer cites to a Confidential Informant such a person has almost always been shown to actually exist when required to be divulged by a Court.
Unfortunately, there have been a very few times that a C.I. was created by an officer who let the “ends justify the means”. When such failures occur we all lose because the system of justice is not just. Of course, these bad acts are only disclosed because a court of law can be asked to force the police to disclose the C.I. If there were no oversight of these activities, people could be unjustly convicted and we would all lose because we would lose faith in the legal system. Then even when the officers acted strictly in compliance with the Constitution we might not believe them.
That is the danger of “anonymous sources”. If there is no mechanism to determine if such people truly exist or are simply the figment of a writer’s desire to advance an agenda, the public may lose faith in all reports.
The Babylonians of Mesopotamia formed a written code of laws designed to resolve all human needs and control all human behavior. That was over 3,500 years ago. It did not guarantee Freedom of Speech.
Fear not, after the Babylonians the Hebrews took a shot at it and adopted, after first rejecting, the Ten Commandments that were supplanted by first Greek then Roman laws. None of these directly recognized the essential right to publicly disagree.
Then along came history’s greatest conquerors, the British, who promulgated a system of law that encompassed much of prior legal systems. What each Code contained was a written desire to account for all human behavior. But the right to peaceably assemble and tell the rulers they were either great or full of bug dust was not specifically included.
In 1787-89 a small group of white, Anglo-Saxon men made up largely of lawyers put forth the U.S. Constitution that was amended ten times before it was even adopted. The first of these amendments attempted to provide for free speech and assembly, an ideal that has helped preserve our democracy for over 200 years. Perhaps those prior legal systems should have included it.
I was musing about these attempts to avoid conflict by applying written words when I watched and read the accounts of President Trump’s campaign stop in Evansville, Indiana on August 30, 2018. And I was transported back to when I took our son out of school to see President Ford when he led a motorcade down Main Street in Evansville on Friday, April 23, 1976.
Jim and I were crushed by the crowd of about 20,000; however, we managed to not only see President Ford but to even get to shake his hand. I thought such an opportunity was of more educational value than one day of sixth grade class. The school disagreed and still marked his absence “unexcused”.
Regardless, while Peg and I did not take the opportunity to praise or protest President Trump, it was not due to politics or philosophy but simply an inability to be two places at once; we were previously committed and our absence from the conflicting event would most assuredly have been “unexcused”. Had President Clinton, Hillary that is, been the campaigner we would have wanted to see her too. In other words, that First Amendment was and still is quite a good idea.
I am appending my column on President Ford’s visit that was first published the week of January 8, 2007. I hope you find it worthwhile if you are seeing it for the first time and not excessively boring if this is a repeat for you. There were many Americans pro and con then too.
Pardon Me, President Ford
(Originally Published Week of January 8, 2007)
President Gerald Ford died December 26, 2006. In a life filled with public service, he will always be best known for his pardon of President Nixon in 1974.
President Nixon personally chose Gerald Ford to replace the disgraced Vice-President Spiro Agnew who resigned in 1973 amid disclosures of bribery while Agnew was Governor of Maryland.
Vice-President Ford served under President Nixon until Nixon resigned in August of 1974. One month after President Nixon resigned, President Ford issued him a full pardon for any crimes he may have committed while president.
At the time, I and most Americans were calling for a complete investigation of the Watergate debacle and especially Nixon’s involvement in it. It was a time of a media feeding frenzy and blood in the water.
President Ford took the unprecedented step of going personally before Congress and flatly stating that President Nixon and then Vice-President Ford had no deal to pardon Nixon if he would resign.
I recall how dubious I was when President Ford stated that he issued the pardon only to help our country to start healing from the loss of confidence caused by Watergate.
Yet, after a few months I began to have second thoughts about my initial reaction to the pardon. I began to see how much courage it took for President Ford to go straight into the anti-Nixon firestorm sweeping the United States.
As a country, we were almost paralyzed by the partisan fighting at home and the War in Vietnam. We needed a new direction and a renewed spirit.
Surely President Ford with his twenty-two (22) years in Congress knew he was committing political suicide by not giving us our pound of flesh. Still, he put his country first. Of course, the country rewarded his sacrifice by booting him from office and electing President Jimmy Carter to replace him.
But during the campaign of 1976, when President Ford came to Evansville on April the 23rd, I took my son, Jim, out of school and we went to the Downtown Walkway to cheer the man who put country above self.
For while William Shakespeare may almost always get his character analysis right, when it came to President Ford, “The good he did lived after him.” Julius Caesar, Act III, sc. ii.
Even President Carter, one of America’s most courageous and best former presidents said of President Ford:
“President Ford was one of the most admirable
public servants I have ever known.”
And when it came to the pardon of President Nixon, Senator Ted Kennedy, while admitting that he had severely criticized the pardon in 1974, said that he had come to realize that:
“The pardon was an extraordinary act of courage
that historians recognize was truly in the national
So, President Ford, since even your political opponents came to appreciate your courage and goodness, I am confident that you have long ago “pardoned” all of us who doubted you back when we needed your leadership.
August 25th. Ah, I now remember it well, thanks to Peg who sweetly asked me over our first cup of coffee, “Jim, isn’t this just a beautiful morning?” I looked up from the trial transcript I was proofreading and grunted, “Yeah”. Things went downhill from there.
As Peg had interrupted my work I assumed she would be pleased to get me some more coffee; so I held up my cup and said as politely as Oliver Twist, “More”.
Her response threw me off: “It’s in the coffee pot. Why don’t you see if you can pour your own while I concentrate on making the bed, emptying the dishwasher, feeding the cat, sweeping the floor and pulling the weeds in the garden? By the way, Happy Anniversary!”
I went into crisis-recovery mode. “Are you sure, I thought it was the 25th.”
“Today IS the 25th and you should already know that since I made a point of telling you yesterday on August 24th that I was planning your favorite dinner for today. Of course, you had your head stuck in that transcript then and merely mumbled something like ‘Okay’”.
Thinking at warp speed I said, “Oh what a grand wedding it was on such a gorgeous day.”
“We got married in a thunderstorm! You kept telling me ‘It never rains on August 25th so we can have the wedding outside’. But our family and guests had to dodge lightning bolts and huge raindrops!”
“Well, at least our D.J. stayed dry.”
“Our D.J. was Rodney Fetcher and he had to set up in the tool shed so he wouldn’t get electrocuted!”
“Yeah, he did a great job. Remember, we did our first dance to Here Comes the Sun by George Harrison.”
“It wasToday by Randy Sparks of the New Christy Minstrels.”
“Anyway, you looked great in that blue dress.”
“It was coral to match your tux. Which, by the way, you managed to spill our champagne toast on.”
I decided to take an old friend’s advice for situations such as this, “When in a hole the first thing is to stop digging.”
“Okay, what do you want to do to celebrate this happy occasion? Dinner at the Red Geranium? A quiet glass of wine out by the fire pit? Whatever sounds good to you will be fine with me.”
“I would have appreciated it if you had simply remembered that we did, in fact, get married.”
“I do remember and it was, I mean is, wonderful. It was just that it snuck up on me. Would a movie help?”
“No movie, no Red Geranium, no wine by the fire. How about just a card or at least some flowers?”
Oh, Gentle Reader, I don’t know about you but all I can hear going on in my head is the duet by Hermione Gingold and Maurice Chevalier from the musical Gigi. Perhaps Peg will allow me up from the canvas if I bring home a box of chocolates with the Lerner and Loewe lyrics taped to them:
“The dazzling moon,
There was none that night.
The month was June
It was [August};
That’s right …”
Well, you get the idea. I’m just glad we have only one anniversary per year because the chill in the air at JPeg Ranch is not conducive to my getting my work done and anything else is completely out of the question.
Robert Frost’s poem The Road Not Taken poignantly emphasizes the dilemma of life’s choices. Frost must have spent a great deal of time on this subject as another of his most famous poems, Stopping by Woods on a Snowy Evening, talks about Frost coming upon a fork in the road of life and having to choose one.
None of us needs Frost or anyone else to point out to us the games the fates play with us but it is handy to find a short form for our thoughts. I hope over the years if you have read Gavel Gamut, which originated in 1990, every now and then you have found a similar lodestone to hang on to. In that regard I plan to from time to time re-run some of the almost 700 Gavel Gamuts. Maybe you’ll catch them the second time round. Taking Leave (January 09, 2006) is one of my favorites. I hope it means something to you too.
(Originally Published January 09, 2006)
In spite of my natural inclination, thanks to my high school teacher, Mr. Burton, I actually learned a few things in American History class such as: The Second Amendment; the assassination of President William McKinley; the sinking of the Titanic; and the execution of Nathan Hale.
One cold Friday, Mr. Burton stood in front of us in a short-sleeved shirt and offered extra credit to anyone who could tell him why he had the right to wear it.
Of course, our minds were on that night’s football game, so extra credit was not in the offing.
Mr. Burton finally gave up hope for our education, via the Socratic method, and gave us the answer: The Second Amendment to the United States Constitution, you know, The Right to Bear (Bare) Arms.
Unlike Paul Simon in his song, “Kodachrome”, my high school teachers did not interfere with my education. The raw material may have been lacking, but the high school refinery did its best.
Mr. Burton, also, portrayed President McKinley and Nathan Hale in class, and sank the Titanic in a washtub while we portrayed the passengers such as John Jacob Astor.
What Mr. Burton burned into our memories was the grace of President McKinley when he was shot in 1901.
The President’s wife of thirty years, Ida, had never recovered from the loss of their only children at ages one and four. The President was ever mindful of Ida’s fragility.
McKinley’s first words upon being shot were:
“My wife, be careful how you tell her. Oh, be careful.”
Considering that President McKinley had been a Civil War hero, a successful attorney, Governor of Ohio, the architect of the Open-Door Policy to China and the Commander in Chief during the Spanish American War, it was poignant that it was said of him:
“Nothing became his life so much as the manner in which he left it.”
I was reminded of the President’s selflessness when I heard news of the West Virginia miners’ last words, written while trapped in the coal mine this week.
At least one of the Sago Mine miners, Martin Toler, left a note to ease the pain of his wife, children, grandchildren and others.
Mr. Toler’s note was written with great effort just before he lost consciousness:
“Tell all I (will?) see them on the other side. Just went to sleep. Wasn’t bad. I love you.”
The President and the coal miner knew how to make an exit.
It is fortunate when there is opportunity for such character to be displayed. No self-pity, just thoughts to ease the pain of others.
Of the six billion or so of us who have already shuffled off this mortal coil, and the six billion or so of us who have yet to take our leave, most of us will not have any last words survive.
But wouldn’t it be comforting to believe we might show the courage and sacrifice of someone like John Jacob Astor who, in 1912, was one of the richest persons on earth and 48 years old when he gave up his seat on a Titanic lifeboat to a woman he didn’t know by saying:
“The ladies have to go first.
Get in the lifeboat to please me (to the unknown woman).
Goodbye, dearie (to his wife). I’ll see you later.”
There was one other thing that made it through the teenage fog during American history class, the last words of the twenty-one year old, Continental Army First Lieutenant, Nathan Hale, just before he was hanged by the British in 1776:
“I only regret that I have but one life to lose for my country.”
Hale’s final thoughts of country before self were recorded for Hale’s family and history by another soldier, Captain Montresor, one of the British officers who was assigned to the execution.
You know you have done it right when those who would take your life, record your courage and sacrifice in leaving.
What William McKinley, Martin Toler, John Astor and Nathan Hale had in common were selfless courage, the opportunity to know death was imminent, the means of preserving their last words and the grace to ease the pain of others.
For most of us, such a confluence of elements will not occur. But, if the opportunity is given to us, it will be telling whether we choose to curse the darkness of our coal mine or to lighten the burden of those who are left to deal with the cave-in.
This famous Latin phrase, “Work Conquers All”, was originally a piece of propaganda used by the Roman poet Virgil (70 BC-19 BC) in his poem Georgics to curry favor with the Roman emperor Augustus (63 BC- 14 AD). Augustus wanted to encourage Roman citizens to quit their enjoyable lives of drinking wine and discussing politics to take up the hard work of farming. Peg, and maybe your spouse too, has carried on this tradition.
In the beginning were the innocent sounding words, “Jim, are you taking a vacation this summer?”
I thoughtlessly replied, “I dunno, why?”
“Oh, I just thought we could spend some time together at the Ranch, relax and catch up on some things.”
“Sounds good, I’ll check my docket.” Unfortunately it wasn’t too busy. I aimlessly proceeded into Peg’s nefarious Inferno.
Wives and husbands see “relaxing” and “catching up on things” from different perspectives, kinda like foxes and roosters might see dinner. The first two weeks of August were anticipated by me to be a bucolic period of connecting with the deer, fish, wild turkeys and even the pesky raccoons around JPeg Ranch. What could be wrong with some time spent with my feet up and a good book or a cool beverage to lull me to sleep on a lazy summer afternoon? Ask Peg!
“Since you are home with nothing to do would you mind …?” Yep, the dreaded LIST! Peg had been secretly working on it since spring. I had no idea our home was near the point of complete collapse from chores undone, by me, of course. Immediate action was called for. What wasn’t called for, or allowed, was propped up feet.
Now one need not be mentally exhausted from reading or relating a seriatim rundown of the physically exhausting chores that stood between “relax” and utter destruction of our home. Their actual completion was punishment enough. Suffice it to say that from tilling the garden, to reorganizing my stacks of half-finished projects from years past, my vacation morphed from pastoral pleasure to a yearning for a return to Court. I’ll be there Monday!
Gentle Reader, you will, of course, remember the Gavel Gamut column of December 05, 2005 where one of Posey County, Indiana’s most infamous brawlers was mentioned. One Tom Miller was fond of drink and when drinking was fond of fighting. In the years just before the Civil War old Tom would get liquored up and lick whoever had the misfortune to run into him on the streets of Mt. Vernon, Indiana. As described by John Leffel in the Western Star newspaper Miller would, “Pace the streets of Mt. Vernon with his coat off, sleeves rolled up, his shaggy breast exposed and his suspenders about his waist.” According to the editor, Tom always bellowed the same challenge, “I’m a mean man, a bad man and I orter to be whipped, I know, but whar’s the man to do it?”
Tom Miller was only one small part of our Posey County and new state of Indiana’s reputation for tumultuous living. The sobriquet, “Hoop Pool Township”, was fairly earned by Posey County brawlers who drove visiting boatmen away. And as for frontier justice in Indiana, some experts assert our Hoosier nickname came about from the proclivity of Indiana rowdies to bite off ears and spit them out onto barroom floors.
I am indebted to columnist Erik Deckers who set forth this theory of the origin of the word “Hoosier” in his article contained in the publication Here and Wow, Indianapolis! Vol.1, No. 1, 2018. At page 22 Deckers attributed this possibility to Indiana’s poet laureate James Whitcomb Riley (1849-1916) of When the Frost is on the Pumpkin fame who claimed that early Indiana folks would frequently gouge out eyes or bite off body parts which would litter a barroom floor and when the next day someone would kick the removed piece of fleck they’d ask, “Whose ear?”
If I had not dealt with so many cases in court where the behavior of the combatants resembled such activity I might look askance on such a theory. However, I can see some merit to Riley’s analysis.
Well, onto another topic as discussed in last week’s column. You do remember last week’s column, right? Okay, it involved military service and concentrated on my Great Great Grandfather, John Giggy who was a stone mason and farmer from La Grange, Indiana who fought all four years (1861-1865) in Company H of the famed Iron 44thIndiana Volunteer Infantry.
Before being wounded at both Shiloh and Chickamauga and before he saw his first shot fired he and his outfit witnessed a sad spectacle in Henderson, Kentucky that helped them understand one of the main reasons they went to war. Kentucky did not secede, but it did have legal slavery until 1865. In fact, one reason Tom Lincoln, Abraham’s father, moved his family from Kentucky to Indiana was to avoid competing for work with slave labor. Slavery was part of the legal and social culture of Kentucky. The young Hoosier farm boys from northern Indiana who were used to doing their own labor had not had direct knowledge of The Peculiar Institution until they personally observed a slave auction in 1861 just across the Ohio River as they were making their way south:
“It was a strange pitiful sight that of women and little children standing upon the action block to be sold as human chattles. They came wringing their hands and with tears and sobs, lamenting their cruel fate. The soldiers stood near filled with pity and indignation but restrained by law and discipline. Slavery existed at this point in its mildest form. Here were a dozen or more large tobacco factories. The blacks were required as a daily task to strip 400 pounds under penalty of the rod. Children of ten years were given this task. Work hours extended from 4 a.m. to 8 p.m. In each room was an overseer whose presence was a threat. Some negroes were well dressed, others ragged. Attendance at church was allowed and many were Christians. They regarded the coming of the soldiers as the precursor of their liberty.”
As to the name Hoosier, Posey County’s most famous citizen, Major General Alvin P. Hovey, while in command at Shiloh came across a Union sentry on a dark night who asked for the password. Hovey was just getting his men to that position and had no idea what password was being used. When the sentry asked, “Who goes there?”, Hovey improvised what he hoped would be an acceptable password and responded, “Hoosiers”. The sentry said, “Welcome Hoosiers.” Apparently, we Hoosiers have been welcomed as such for a long time.