Thursday, November 5, 2009

No Credible Witnesses: The Problem with the Right-Wing Story on Gladney

Local and national wingnuts have been freaking out lately because one of their friends leaked (possibly illegally, see below) a police report about the incident on August 6 between Kenneth Gladney and Elston McCowan. If you're not familiar with the incident, you can get some background from my previous writings here, here, and here.

Given this leaked police report, the tea party activists and Glenn Beck are asking, "Why have there still not been any charges filed?" I can think of two responses to this question. First, the police report should not be regarded as an account of the entire incident as it only relies on the testimony of three witnesses and absolutely no material evidence. These witnesses (who were all tea party activists) approached the officer so the officer had no real opportunity to interview everyone who was present. Second, the witnesses involved all have political agenda's and there are good reasons to question their reports.

Before I delve into the details, however, I want to point out that the primary people pushing this story, Big Government and Glenn Beck, are literally suggesting that President Obama and Rep. Carnahan were directly responsible for the fight, and further are suggesting that the District Attorney Bob McCulloch is covering up for SEIU members. As I've stated before, I can't claim to know exactly how the fight started, but I can say that conspiracy theories like this are nuts and that any rational person (i.e. any non-teabagger) would find their reports laughable based on these absurd attempts to link the incident to Democratic politicians. Whether McCowan or Gladney ultimately started the fight, the idea that they did so on the orders of a politician is ridiculous (for example, if Obama had ordered "thugs" to beat up people as a way of intimidating them, wouldn't they attack an actual tea party member rather than some guy selling junk outside the event?).

My first claim above was that the police report should not be considered a full account of what happened. The report only interviews Gladney, along with three other witnesses who I will discuss below. However, there is no input from McCowan, or from Perry Molens, or from the guy with a pony tail who was protecting McCowan from Gladney at the beginning of the video, or from the blond lady who later was arrested for hitting Kelly Owens' camera. All of these people were around at the beginning of the video, and so should at least have some sense of how the fight started. But their testimony is not included. I'm not saying that the officer necessarily made a mistake (for all I know, it's illegal to include their testimony since several of them were arrested), but we should be clear that the interviews from three people does not tell the whole story. And not only that, but the tea party activists approached the officer, as is stated in the police report, so the officer only really had an opportunity to hear one side of the story about an event that he did not personally witness.

This leads to the more important question of why would I suggest that the witnesses in the report might not be credible? Let's start first with the easiest. Here's the original video again for context:

Towel Man (the guy with a white towel over his shoulder who yells a lot) in the original video is initially trying to help McCowan stand up. This is pretty strange behavior if McCowan had just gotten finished beating Gladney on the ground (especially when you see how Towel Man reacts later). However, as another woman appears to be holding Gladney back from attacking McCowan, Perry Molens pulls Gladney backwards and Gladney falls on the ground (0:05). At this point, but not before, Towel Man starts yelling, "you attacked him! you attacked him!" to Perry Molens. If Molens and McCowan had been attacking Gladney earlier, why wasn't Towel Man yelling earlier?

Towel Man continued to yell "you attacked him!" to Molens for much of the rest of the video. This strongly suggests that he is the third witness listed in the police report, as the report states, "I was then contacted by Witness #3. ___ gave a similar account of the original assault. I would like to add that when I originally walked up to the crowd, Witness ___ was one of the individuals being yelled at by suspect Molens" and Towel Man can be seen speaking with the officers in the video. But if Towel Man is Witness #3, then I'd say there are strong reasons for being skeptical of his testimony. Check out this video below (the interesting stuff isn't until the end, though, so don't feel like you have to watch the whole thing):


If you start watching at the 6:44 mark, you can see that Towel Man had to be held back from attacking the SEIU employee. He was very clearly trying to start a fight. Given this type of behavior, and the fact that his spectable of "You attacked him! You attacked him!" was obviously designed to attract a crowd and/or influence the police, it would be a mistake to base much on his claims about the incident.

Now for the (amazingly) even more interesting witnesses. The other two witnesses, who I didn't know about until seeing Beck's program, are Harris and Sandra Himes. Harris was apparently not content to wait for the process to play out, and he recently leaked his story to a right-wing blog. Both of them claimed that McCowan started punching Gladney and that Molens and McCowan beat Gladney while he was on the ground.

Harris Himes, it turns out, is the pastor at the Big Sky Christian Center in Montana. Now before anyone complains "How dare you question a pastor," (as the wingnuts surely will) keep in mind that Elston McCowan is a minister as well, and the wingers heaped all kinds of hateful scorn on him. But more importantly, I'm just raising questions about how strong a conclusion we can draw from the testimony of someone with a clear political agenda.

Harris Himes in fact is quite well-known in Montana as someone who routinely gets involved in political battles. In fact, many have questioned Himes tax exempt statusBlockquote when he makes statements like this:
Since Republicans support the sanctity of life and marriage and “recognizing that any Democrat is entirely against those principles, there’s no way any Christian can sit out this election,” Himes said. By not supporting Republicans in the election, “you will do something absolutely that God abhors,” he said.
Furthermore:
  • Himes also argued against a law that would prevent bullying students based on (among other things) their sexual orientation, calling it, "a trap."
  • He attends weekly protests outside of a women's clinic as part of a group that has previous blocked entrance to the parking lot and clinic, and seems to take pride in pushing the limits of the law.
  • In response to a bill that would outlaw discrimination based on sexual orientation, Himes testified, ""I stand before you a potential prison inmate."
  • And perhaps most bizarrely and summing up all of his other positions, Himes believes that the United States should be a theocracy.
In other words, Himes is clearly a guy who thinks that the normal legislative process should take a back seat to "God's Will," and of course believes that he has direct insight into what that will would be. This point is further reinforced by the fact that Himes couldn't wait for the courts to follow their natural process; rather, he had to leak his information to a right-wing blog in an attempt to bias the process. So Himes as well has a pretty clear partisan agenda, just like Towel Man.

But that's not all. Himes testimony in the police report includes a very strange passage. Himes testified that, "he saw Suspect McCowan reach over the table and punch Victim Gladney in the face. The assault knocked the victim off balance. Suspect Molens then went around the table and pulled Victim Gladney over the table backwards by the back of his shirt collar. He began to punch and kick Victim Gladney."

First of all, it would be pretty amazing that all of this happened yet Gladney somehow sustained no facial injury, but that's exactly what the officer reported. But more importantly, the story about the table seems bizarre. You can see the table that Gladney used to sell pins at the beginning of the video:
I'm not a physics major, but this seems like a very strange table to pull someone over. And if Molens had pulled Gladney over the table, why is the table standing up straight with all of the merchandise nicely in order at the beginning of the video? His testimony seems bizarre in light of this fact.

So I don't regard the Himes' testimony as substantial proof either. I suppose it's possible that there are other witnesses, but Kelly Owens (the woman whose camera was hit) has said she never saw the initial altercation, and I've documented before that David Brown is an extremely questionable source of information and is directly making a profit off of this incident.

Finally, none of the witnesses' testimony address substantial questions raised by the actual video:
  • If McCowan and Molens had been beating Gladney for a long time, why did the crowd commotion start only after Molens pulled Gladney backwards?
  • Why was Molens calmly smoking a cigarette at the beginning of the video if he had just been beating Gladney?
  • Why, in the video, does Gladney say to McCowan, "Why'd you hit my hand?" If someone had been beating you on the ground, wouldn't you say a little more than that?
  • And why, at the start of the video, is the man with long hair standing over McCowan in a manner indicating that he was protecting him from being attacked, and why was Gladney's arm being held back.
I don't find the information we have so far conclusive at all. The jury still seems to be out on this, and I'm sure this is why the police department is taking their time to reach any conclusions. I'm sure it won't help matters that the wingers are leaking all of their information to media outlets like Beck and Breitbart. And this leads me to a final point.

I recently asked the county court's records office about the police report, and they said it still has not been released. Since it is still pending, the police department is not allowed to release the information to the public. However, the attorneys for the people involved would have access to the witness reports. This suggests that it might have been one of the attorneys who leaked the information. Since we can be pretty confident that the attorneys of the SEIU employees would not be passing on information to Glenn Beck (and would certainly not be passing on highly filtered information that makes their clients look bad), it seems far more likely that it is Kenneth Gladney's attorney who is leaking the information. And Lord knows that Gladney's attorney/boss/spokesman David Brown has quite a history of sketchy behavior.

Why is the important? Well, check out this rule for Missouri Attorneys:
RULE 4-3.6: TRIAL PUBLICITY

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding Rule 4-3.6(a), a lawyer may state:

(1) the claim, offense, or defense involved, and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to Rule 4-3.6(b)(1) to (b)(6):
(i) the identity, residence, occupation, and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time, and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

(c) Notwithstanding Rule 4-3.6(a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this Rule 4-3.6(c) shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to Rule 4-3.6(a) shall make a statement prohibited by Rule 4-3.6(a).
Since the witness reports are not public, it seems to me that if an attorney is releasing this information to the media, that attorney would be breaking these rules. It is certainly clear that whoever is leaking the information is attempting to prejudice the proceedings.

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