The Hand that Prosecutes the Innocent

[XLFD]

On August 4th, I attended a court proceeding that should have never happened.  A prosecutor was seeking a felony charge against an honestly-employed Ludington citizen stemming from an incident where another citizen had already been charged with multiple felonies and had them all dismissed by the local district court due to the conclusion (left unsaid by the court) that an unlawful arrest had occurred.  

The charges sought in the case I was viewing was precipitated by the simple act of the defendant picking up a cell phone of the person that was unlawfully arrested.  Even had it been a lawful arrest, even had the officers involved acknowledged they were investigating a complaint, the cell phone would not have been part of the investigation that the officers would need to seize (and they didn't, they didn't even investigate the original complaint in any way).  

The matter had made it this far due to two people who should know better.  Captain Michael Haveman of the LPD, a 20 year veteran who was at the incident and initiated the unlawful arrest who indicated on his report of the original incident that the defendant's actions amounted to obstruction.  The other was Beth Hand, an assistant prosecuting attorney in Mason County who also served in that role down in Oakland County for several years. 

Her forte back then according to multiple news reports over the years seems to be prosecuting medical marijuana patients stung by local police departments for not following the local prosecutor's interpretation of the law.  Her cases span nearly a decade, but basically disappeared after the recreational marijuana initiated law came into play and it was a lot harder to prosecute otherwise innocent people that needed medical marijuana for their ailments.

Haveman and Hand (pictured above) should know through their decades of experience what constitutes a lawful arrest.  In the Devon Wakelin preliminary hearing (detailed in Resisting and Opposing Injustice), these two pressed for two charges of resisting and obstructing police (R&O) against Wakelin.  Haveman was there, had the opportunity to review the video on his and his partner's bodycam, and yet falsely testified that the partner advised Wakelin he was going to be detained, this was also reflected on his police report:

The problem was that neither of the two active bodycams reflected Haveman's memory.  Both officers converged on Wakelin and assaulted him without any warning.  Two of the more maddening things that came from that hearing (where, as noted, both charges were dismissed) was that Haveman insisted that his recollection was true despite the absence on both cameras which otherwise recorded the tumultuous audio of the assault on Wakelin perfectly.  

At court this August day was Lindsey Klastow, the woman mentioned in this report, who seems an unlikely felon for her part in what happened that day.  Officer Gilmurray's narrative of what happened in the report mentions only that Klastow was telling Wakelin to not resist and that Wakelin was trying to give his phone to her.  Had this been a regular arrest rather than an unreasonable officer-escalated unlawful assault/arrest, this phone transfer would have been routine.  Gilmurray saw nothing amiss with the handoff.

Captain Haveman on the other hand, mentions her yelling from the house before coming out, then affirms that she advised Wakelin to stop resisting.  He adds that she 'tried to reach towards Wakelin' after he mentioned he wanted to give her the cell phone in his pocket.  Wakelin would eventually drop the phone and she would pick it up.  According to Klastow, Haveman actively tried to prevent her from picking the dropped phone meant for her by kicking at her hand and missing.  

The audio portion does indicate Haveman did ask someone to stay back twice.  For some reason, Captain Haveman thought Klastow being too close was felonious behavior, obstructing his action in making the unlawful arrest of Wakelin, Prosecutor Beth Hand agreed with that logic by pursuing those charges:

The logic seems to be that she did not obey the words of the police officer; she certainly didn't make contact with or interpose herself into the unlawful arrest that was happening in front of her eyes.  Nothing in her actions suggest she was trying to obstruct what was happening, quite the reverse since she was advising Wakelin not to resist.  No officer ever indicated that she could not receive the phone from Wakelin, the audio indicates he only said "stay back" without further directions or a definite target of his words. 

Prelims generally are held in the district court to see whether there is enough evidence and cause for them to send it up for trial in the circuit court.  To establish this on August 4th, Prosecutor Hand called only one witness to the stand to justify why R&O felony charges were due on Klastow.  Captain Haveman once again took the stand and lied once again over the substantial issue that Wakelin was told he was being detained by his partner.  This second perjury was not corrected even after the video was reviewed again.

This point should have been contested by the defendant's court-appointed attorney as it was hearsay and that it was false if one listened to the video.  Since the judge previously decided the arrest's lack of lawfulness made the other case dismissible, the attorney might have asked for a dismissal here since the officer's actions at the time of Klastow's 'crime' of not staying back appropriately to Captain Haveman's expectations was not lawful. 

The Michigan Supreme Court recently ruled in 2012's Michigan v Moreno that one has a common law right to resist an unlawful arrest under current R&O law.  Everybody (other than Ms. Hand and everybody in the LPD, who all sorely need some training in Constitutional law) including Judge John Middlebrook can see this detainment and arrest was just an assault with a mention of detainment after they felt he wasn't totally submissive and planned to tack felonies on him for being a victim of their attack.  

Lindsey Klastow had every legal right to assist an assault victim being pummeled by cops acting contrary to law, but what did she do?  She actually tried deescalating the situation by telling Wakelin to not resist.  The video also shows the scene deescalated once she retrieved the phone and moved out, for Wakelin seemed worried that the cops would illegally seize and search his phone.  Who wouldn't after being rushed and mugged by public safety officers who had no reason to do so.  The struggle to get the phone out of his pocket was the only notable 'resistance' seen on the video, once she had the phone, Wakelin was docile as a lamb.

After lying about the detainment on the witness stand, Captain Haveman (above) went on to say that Klastow's actions were not responsive to his command to 'stay back' and her 'reaching in' to get the phone amounted to obstruction.  The definition of 'obstruction' in Michigan R&O law is as follows:

"Obstruct" includes the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command.

Klastow did not use or threaten use of force or physical interference.  But did she have a knowing failure to comply with a lawful command?  The only command given was to "stay back", let's look at that short phrase:

"Stay bacK" is primarily used for safety reasons, to maintain a safe distance from something that may be dangerous.  These two officers were laying the hurt on her boyfriend during their unlawful arrest, they wouldn't want her to get in the way when they might need to throw punches or throw him on the pavement.  One could easily interpret the "stay back" statement as a safety warning, other than a 'lawful command'. 

The prosecutor needs to not only show in a real courtroom that Klastow knew it was a lawful command (which will be impossible without an admission from Klastow), but also that Klastow knew the distance she was supposed to stay back was the same small subjective distance that Captain Haveman meant with his statements that may have been a warning, a suggestion, or an order.  That's a tall order should she not plea bargain along the way.

Yet on August 4th, Judge John Middlebrook looked past those problems that the prosecutor faces, looked past the issue that a supposedly 'lawful command' came from a police captain performing an unlawful, brutal arrest.  Rather than dismiss it as he should have, he passed it up to the circuit court, where Lindsey Klastow, model citizen, innocent of any wrongdoing in this situation (unlike the thug known as Captain Michael Haveman who has perjured himself twice and engaged in a brutal, unlawful arrest/assault) will face a felony and potentially two year of prison and a stiff fine for being the only adult that day in May who worked to deescalate a violent situation that LPD was fully responsible for creating.  Not to mention the prosecutor lending a Hand to this injustice.

See more videos of this meeting here.

[Willy]

Sounds like she needs a good attorney and the police need to bone up on the Constitution and how to deescalate these kinds of situations. It sure seems like most of these types of situations in this community   are caused by the police who appear to have an axe to grind. Again please, better training for the police.