The trial of Carter Leary
November 01, 2011Click here for the short, "Breaking News" version of the story of the Carter Leary trial in the 12th Street Siege case.
Click here to review the earlier articles in the Protest and Serve series.
The case against Carter Leary was dismissed at the end of the state's presentation of evidence upon a motion by Leary's attorney, Les Robinson. There are those who might interpret the dismissal as a legal technicality in that the motion to dismissed rested upon the violation of an order issued by the judge, at the beginning of the trial upon a motion by Robinson, to sequester the witnesses so they would not be able to hear the questions asked of earlier witnesses and know what the witnesses had said. When several of the deputies who had not testified re-entered the courtroom and sat and listened to part of the proceedings, that provoked the motion for dismissal.
But even before then, Robinson had shot major holes in the evidence/testimony in his withering cross examination of the state's witnesses. The objective of this article is to review that evidence.
Leary was charged with resisting arrest and obstructing an officer. The deputy who signed the warrant testified that Leary "refused to obey my commands" and that is what led to his arrest. Our legal expert tells us that in order for that kind of charge to be valid the command(s) must be lawful commands. In this case, Robinson established, on cross examination, that the commands of Deputy Josh Shiflett's commands of Leary were not apparently lawful and that the evidence presented did not support the charge in the warrant. Here's why.
Captain Russell Davenport, the first witness to testify, said that the Sheriff's Tactical Response Team (TRT—a.k.a SWAT ) was called to the scene several hours after the incident began at around 8:00 a.m. by Chief Mic Reed of the Washington Police Department (WPD). Chief Reed and Capt. Davenport conferred upon the arrival of the TRT and established the TRT's purpose in being there. It was: 1. To assist if needed if the suspect (Gary Gautier) exited his house with weapons and presented a threat to the safety of officers or others in the vicinity, and 2. To assist if anyone was injured. This was confirmed by the other witnesses. Chief Reed testified that the strategy was to simply wait Gautier out.
The TRT took up positions about seven houses away from Gautier's house. One member (Deputy David Richards) was positioned across the street from Gautier's house as a spotter. He had a radio capable of communicating with the TRT, including Chief Deputy Harry Meredith (who did not testify but earlier had told us he was positioned near Tayloe's Pharmacy several blocks away and the end of 12th Street.) Davenport testified that he was in constant contact with Meredith and Richardson. The other TRT members assembled in a yard in the neighborhood out of sight of Gautier's house and Leary's house, which is two houses east of Gautier's. Thus, they all relied on Richardson's reporting of what he was seeing.
When the TRT arrived at the scene Leary was parked at the end of 12th Street near the Pharmacy talking to Chief Reed. Reed testified that Leary was talking to Gautier on the phone attempting to get him to give himself up. The power had been turned off to the neighborhood and it was a hot June day. Leary, an electrician by training, was attempting to get Gautier to allow him to pull Gautier's electric meter so the power could be tuned back on for the neighborhood but still keep it off on Gautier's house. Reed testified that he understood that Leary was attempting to mediate with Gautier but that he neither requested Leary's help nor agreed for him to enter Gautier's house.
At some point late morning, several hours into the standoff, Leary drove through a back entrance to the neighborhood to his house. Several witnesses, including Richardson, the spotter, testified that they observed Leary walking around the area and eventually saw him go to Gautier's house and apparently remove the electric meter. Later he also returned to Gautier's and entered the house. All this happened over several hours without any intervention by any of the officers at the scene.
Several witnesses testified that Leary then exited Gautier's with an "armful" of weapons, described as several long guns which he was holding by the barrels and/or as a 'bear hug' against his chest. It was established by Robinson that Leary never pointed the weapons at anyone or made any menacing moves. Apparently several officers from WPD also observed Leary's action and took no action to stop him at any time.
Testimony indicated that Leary took the 'armful' of weapons into his house. It was at this point that Robinson advised Davenport and apparently Meredith that "Leary has exited Gautier's with weapons." According to what Meredith has told the Observer he issued the order to take Leary into custody, apparently not knowing that Leary was trying to assist police by disarming his nephew, Gautier. Remember, Meredith and Reed were at the same location (near Tayloe's Pharmacy). Davenport gave the order to the TRT to take Leary into custody.
Shiflett testified that upon receiving Davenport's order he approached Leary's house from the side and ordered Leary to drop the weapons. Leary said "no, I'm putting them in my house." He then entered his house with the weapons and Shiflett indicated the TRT stood down. Leary later came back outside of his house with a handgun in his hand. Robinson established that Leary was pointing the pistol at the ground and "looking at it." Leary told us that when he took the weapons into his house he unloaded the long guns but because the power was off he could not tell if the pistol was loaded so he took it outside in the sunlight to be sure it was not loaded. Shiflett ordered him to drop the pistol and Leary refused, taking the pistol back in his house and putting it with the long guns. He then came outside. Shiflett testified that he then approached Leary and told him he was under arrest. Shiflett testified that Leary "lunged toward me" and he put him on the ground. Leary is in his 70's and recently had surgery. He says that he could not bend down enough to get on the ground. We observed him a day after the incident and his frail physical condition was confirmed.
Leary's broken tooth on June 17, 2011
Nonetheless at least two, or more, deputies pushed him to the ground, breaking out a tooth and leaving several severe bruises on him, which we observed the next day in an interview with Leary. Shiflett's testimony was that the use of force to subdue Leary was the result of "his not following my commands (to get down on the ground)." Robinson established that Shiflett did not perceive any imminent threat to his or others' safety but rather that Leary did not "obey my commands."
Bruised head on 6-17-11
A person visiting a neighbor who observed all this told the Observer that "three or four of them SWAT team members jumped on Mr. Leary just as he came out of his house. I thought they were going to kill him. One pointed a gun at his head and I was afraid they were going to shoot him." We established from the eye witness that Leary was not armed (confirmed by Shiflett's testimony) and that he made no menacing moves toward any of the officers. "He was jumped by those men in black" as he walked out of his house the witness told us.
The witness told us she made a video of Leary's arrest with a cell phone but she did not know how to download the file from the phone. She promised to allow us to do so, but failed to show up for the subsequent interview. She contacted us by phone later and told us she feared for her life if the Sheriff's Office found out she had videoed the arrest. The phone number she called us from was a pay phone and we never were able to re-establish contact with her. (If she is reading this, we would ask her to please contact us as she did before. We will insure her anonymity.)
Shiflett testified that Leary was taken to the Magistrate's Office where Shiflett signed an arrest warrant. Leary was released on bond.
Bruised foot 6-17-11
We have established that at that point Meredith ordered the TRT to stand down. They did not return to the scene, even though Gautier was still holed up in his house (the original reason for their deployment). We have established from reliable sources that Meredith refused to continue participation with Reed in command of the incident.
Meredith was critical of Reed's decision to allow Leary to try to mediate with Gautier. Reed testified that he neither solicited nor approved Leary's actions but did not try to stop him. Robinson established in cross examination of all of the witnesses that many officers observed Leary's actions and none felt a need to intercede until Shiflett subdued him in his front yard after Leary stowed the weapons. Shiflett said very clearly that the reason he subdued Leary was to arrest him on orders from Davenport. Davenport got his orders from Meredith. Meredith confirmed this. Meredith told us, and Davenport testified, that they disapproved of Reed allowing a "civilian" in negotiate with a suspect. Gautier is Leary's nephew and neighbor.
Apparently (our conclusion), because of this disagreement on tactics, Meredith pulled his people out. Reed continued the standoff and eventually 'allowed' Doug Mercer, a Washington City Councilman, to go in and talk to Gautier. Shortly afterward Gautier agreed to give himself up. We'll have more on Gautier's part in the incident after his case is settled.
The reason for attorney Robinson's emphasis on the details of Leary's arrest by Shiflett became obvious after the state rested its case, without calling all of its witnesses.
Robinson made a motion to dismiss the case because he contended the arrest warrant was illegal. Here's our understanding of his argument:
Shiflett charged Leary with resisting arrest and obstructing an officer. But Shiflett testified that the reason he arrested Leary was because Davenport ordered him to do so. "So you acted to arrest Mr. Leary before he resisted?" Shiflett, appearing to be reluctant, said "yes sir." "So what had Mr. Leary done illegal that would have given you probable cause to arrest him?" "He had the guns." "But after he put the guns in his house, what did he do? Was he doing anything illegal?" Robinson asked. "Capt. Davenport ordered me to arrest him," Shiflett responded.
Our legal expert tells us that Leary's possession of the weapons was not in and of itself unlawful. "Unless the made some threatening action he had every right to remove the weapons from his nephew's house and take them to his house as long as the nephew agreed." That he "had guns" did not quality as a reason to arrest him we were told.
So Robinson argued that the decision to arrest Leary came before Leary "resisted" but that the warrant did not charge him with any action that was illegal that would have justified an arrest. Thus, technically, Leary would have been resisting an illegal arrest. He had done nothing illegal at the time the order for arrest was given.
Although not directly related to the evidence presented against Leary in this trial (he was not charged with anything related to the weapons), it was established by testimony by Shiflett that the "TRT secured the weapons." This meant that after taking Leary into custody Sheriff's deputies entered Leary's home, after he had told them not to do so according to him, and seized the weapons. They did so without obtaining a warrant to seize the weapons. Shiflett briefly contended that they entered Leary's residence under "exigent circumstances" but Robinson quickly established that no exigency existed in that Leary nor the weapons were any threat to anyone at that point and that the weapons as evidence were not likely to be tainted pending securing a search warrant. This issue was not pursued by Robinson, according to him, because the weapons were not introduced as evidence to support the charge on the arrest warrant.
So the question remains unanswered. If Leary's arrest was ordered because of the weapons why was he not charged with that instead of or in addition to the resisting/obstructing charge?
That was Robinson argument to dismiss the case. Judge Regina Parker denied the motion. That's when the issue came out about the witnesses being in the court room.
Our legal expert tells us that he would assume that the reason Leary was not charged with a weapons violation was two-fold. First, from the evidence presented there was no crime committed re. the weapons. Technically all Leary did was retrieve the weapons from Gautier's house and place them in his house. "If the TRT believed the weapons to be evidence there was no reason to seize them without a warrant. Exigent circumstances were not present to indicate evidence would have been lost or that the weapons presented an imminent threat requiring action without a warrant. They should have sealed the house and gotten a warrant, if for no other reason than they may have found something in Leary's house that might be evidence in the case." We were told that the second reason Leary was probably not charged with a weapons violation was that the Sheriff's Office realized the seizure was illegal and could not be used at trial.
Nonetheless, regardless of the reason, Leary was not charged with any crime that would have warranted Meredith/Davenport's ordering his arrest in the first place. Our expert tells us he believes the judge should have granted the motion to dismiss for want of a valid warrant. "In order for a resist/obstruct charge to be valid the arrest being resisted must be valid" we are told. "That does not appear to be the case in this instance."
And the issue remains: "Did the TRT use excess force in taking Mr. Leary into custody when he was disarmed and not physical capable of presenting an imminent threat to anyone, including the arresting officers?
We asked Mr. Leary for his explanation. He said: "I had done nothing wrong. I was trying to help. And I was successful in disarming Gary. When I took the guns to my house I made no threatening moves against anyone. I unloaded all the weapons. That is why I took the pistol back outside…to be able to see if there were any shells in the chamber. When I walked back out of my house to explain all this they jumped me. I never did anything illegal."
In a long interview Mr. Leary revealed to us his distrust of the Washington Police Department and Beaufort Sheriff's Office. He told us of another recent incident in which WPD officers came to his house looking for a dog that somebody had said had bitten them. He told the officer he did not own a dog. They asked if they could come in and he agreed. They walked in, whistling for a dog. He again told them he did not own a dog. They asked if they could look in his shed out back. He agreed to that. When they did not find a dog they left.
The next night they came back, again this time without a search warrant also. They asked him if they could come in and he agreed.
Mr. Leary is a Civil War buff. His book cases are lined with history books. He has a massive private collection of Civil War memorabilia. The officers asked him about some Hotchkiss shells (cannon) he had recovered from a sunken ship that they had seen in his shed. He explained this. The officer left and Mr. Leary says he assumed they were satisfied. Later several more officers came to his house. Again, without a warrant. They demanded that he give them the Hotchkiss shells saying they were illegal explosives. They seized two or more of the shells, while leaving a relatively larger quantity of black powder behind. "I don't understand if the shells were dangerous why the black powder was not," Leary told us.
|Civil War antiques in Leary's living room|
It turned out that the WPD had contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives. They were the ones who seized the shells. We talked to a supervisor of ATF in Wilmington and he explained that they thought the WPD had permission to take the shells. Leary says definitely not. ATF nor WPD could produce the customary form that a person signs to indicate permission to take property. The shells were turned over to the bomb disposal squad at Cherry Point and they told us they destroyed them. The Marine officer would not confirm whether they were explosive or not. The shells are valued at several hundred dollars apiece on the antiques market, depending on their condition. Mr. Leary never got them back and never was reimbursed for the value of the shells. "I said then that I would never give another police officer permission to enter my house without a warrant." Mr. Leary still possesses some other shells and cannon balls, which he says are not explosive. "No, I don't trust them (the police). And I think I have good reason not to do so."
When the TRT seized the guns Mr. Leary had removed from Gautier's house they left behind a number of shells, cannon balls, and other antique as well as modern weapons. He told us: "If they ever come back, I will not give them permission to come in this house unless they have a warrant. Never, ever."
We are disappointed in this outcome. It is disappointing that this case ever went to trial. It is just as disappointing that Mr. Leary was ever charged with anything. He should have been given a medal for helping resolve a tense situation. Without his help it could have been a tragedy.
But what is equally disappointing is the behavior of the Beaufort County Sheriff's Office and the Washington Police Department. Moreso the Sheriff's Office.
We believe Leary was illegally arrested and subsequently tried due to the fact that there was not adequate communication and coordination on June 15, 2011 between the top commanders on the scene. It appears that Chief Harry Meredith gave the order to arrest Leary without conferring with WPD Chief Reed. Had they been working together we think this would never have happened. Meredith apparently did not know what Leary was doing at the time he ordered him arrested. But he would have known had he checked with Reed before issuing an order to arrest Leary. Regardless, Leary had apparently done nothing illegal to be arrest for.
But Reed is wimpy when he claims that "sometimes officers on the scene have to take action when they see a need to do so." Hogwash. Leary was trying to mediate with Gautier. It matters not one whit whether Reed requested this or approved of it. If Meredith or Reed had wanted to stop Leary they could and should have done so hours before his arrest and should have done so without sicking the SWAT squad on a 70 year old man recovering from gall bladder surgery. Leary walked around his yard, in the street, and in the neighborhood in front of scores of officers for hours and not one of them confronted him. All Meredith or Reed would have had to do was call him on his cell phone and tell him to clear the area.
But that would have been a mistake. Leary was trying to help, and as it turned out he was one of the two best resources officials had at the scene.
It is, in our opinion, absurd for the Sheriff's Office to contend that "we would never send a civilian in to negotiate with a gunman." One of the leading hostage experts in the nation has told us: "you use whatever resources you have available. If that is a family member and the circumstances, on balance, indicate that they can help, you would be grossly negligent to fail to consider doing so." Makes sense to us. There was no evidence presented to show that there was any reasonable cause to believe Leary's action presented any danger to anyone, including himself. The TRT was obviously wrong to assume that.
But that is but one strategic error made in this imbroglio. The first happened in the first few moments of the incident when Gautier called asking for help and what he got was a militaristic response. It went downhill from there. We'll have more to offer on that point later, but suffice it to say here that as the results of this incident show very clearly, Leary was a hero, not a villain.
We think some of the people responsible for this action went to 12th Street that day with a predisposition for violence. And sure enough, that is how it turned out. But it could have been much worse.
One simple fact seems to make a compelling argument that Deputies Meredith, Davenport and Shiflett acted inappropriately. None of the other officers on the scene felt so compelled to act as these three did, including one of their own (TRT member Richardson).
Hindsight is indeed 20/20. But these officers are trained and charged with the responsibility to "protect and serve," not just butt heads. Their apparent illegal seizure of the weapons is but another example of abuse of authority under color of law. And Shiflett's actual arrest was, in our judgment, grossly excessive in the use of force where there was no imminent danger to anyone.
And to Captain Davenport we would simply suggest that someone "shooting him the bird" is absolutely irrelevant. Grow up.
Meredith argues, essentially, "you never can tell…" what might be a danger. Nope. That's not true. You not only can tell, you can and should anticipate the most effective techniques to neutralize a volatile situation, not escalate it. Apparently the Sheriff's Office needs some effective training in the concept of and operationalization of "proportionality."
The proof of this goes right back to the fact that when the spotter advised Meredith that Leary was bringing weapons out of Gautier's house had he conferred with Reed about the best course of action this would most likely have diffused this situation immensely. Leary had secured the weapons. They were no longer accessible to Gautier. Leary simply stowed them in a safe place. No immediate action was called for. None whatsoever.
But for a trained police offer to justify the use of force to subdue a suspect simply because "he did not obey me" is the essence of the mindset that caused this tragedy on 12th Street. It is much of what is wrong in this country today with all the abuse of citizens by a few bad law enforcement officers.
Abusive law enforcement officers are rare. As in this case when there were dozens involved and only a handful used or ordered violence we see the illustration that the propensity to use physical force or authoritarian power is the first, not last option for only a relatively small percentage of law enforcement officers.
Police should never use force unless they have to. And then they should use only the force absolutely necessary to remove the imminent threat or affect a legal arrest.
In this nation, we give police extraordinary power. And that is as it should and must be, but with that bestowed power comes immense responsibility in the exercise of that power. It was abused in this incident and it is abused all too much. It needs to stop. If it does not there will be more and more people who, like Mr. Leary, do not trust police…and for good reason. And as that number increases the problems increase also.