Writing Their Way Out

Dr. David Coogan
Photo Credit: davidcoogan.com

The smoke-filled writers’ rooms as seen on TV and depicted in books – even those where we work – all share a few similarities. Many are littered with papers, pictures, notes and reminders hung on the walls. Some workshops bear striking resemblance to the cubicle wastelands of “Office Space” or the fluorescent nightmares of Chuck Palahniuk’s “Fight Club.” Some are even racially homogeneous, or populated only by men. But rarely do we learn about the writers’ room where every writer is incarcerated, where laws command them to stay.

Such is the case at the Richmond City Justice Center – formerly known as the Richmond City Jail – in Virginia, where Dr. David Coogan and his colleagues have spent the last four years conducting Open Minds, a writer’s workshop that gives inmates the opportunity to develop their memoirs in a safe zone – a place where confined men are free to explore themselves – and document the long, unbroken chain of events that brought them to this room.

“I had a hard time believing that they were not like me,” Coogan said. “I refused to put them into a ‘they’ category. I figured some of them had to be inquisitive, intelligent, creative – not all of them, but some of them – would have to be like me, or the students I meet at VCU, and would want to write their ways out of the lifestyle that got them there.”

Coogan said his current line of work began as an exploration. “I wanted to see if writing could help people change their lives,” Coogan said, “and I thought, ‘I have the resources. I have the motive. I have the time. I have the incentive.’”

Coogan’s incentive became the muted public reaction to a gang-rape which took place near his home in the city.

“I was overwhelmed at – not so much the crime itself – but the reactions to the crime,” he said. “What really floored me was that nothing was being done about it.”

Coogan said he wanted to do something. His response, from the perspective of a writing teacher and scholar of public rhetoric, “was to inquire: What is the cause of crime? And are there some people who get caught up in crime who don’t know why, and want to know why?”

He began volunteering through Offender Aid and Restoration in 2005. OAR is a nonprofit organization working with ex-offenders in the downtown area. While there, a case worker suggested he take his ambitions to the jail where he could start teaching writing.

“And she said, ‘If you really want to find out if writing can help people, you should start there.”

An estimated two-thirds of released inmates are rearrested within three years of release, according to a 2005 report published by the Bureau of Justice Statistics, a federal agency that tracks criminal justice statistics. After five years, statistics show three-quarters of released prisoners are rearrested.

Coogan, however, knows the more higher education a person gets in prison, the less likely they are to return to crime.

Virginia Commonwealth University, where Coogan is an associate professor, will soon offer scholarships to students under Open Minds whose work stands out.

“They can come to VCU and take a couple of classes for free on their release,” Coogan said, adding that the school will announce more details at a later date.

Though a scholarship may present significant opportunities to writers emerging from Coogan’s workshop, there is still more to be done – or undone – for communities belonging to inmates of state and federal prisons.
Coogan said there are at least two angles from which the community can approach recovery and reduce recidivism.

“I’m very much concerned with the individuals who want to work from where they are in their lives and in their writing,” he said, “but I’m very concerned with the larger structural problems that our society has not fixed.”

Coogan identified what he described as a major obstacle to ex-offenders who, as a result of their incarceration, become ineligible for Pell grants: Through a provision of the 1994 omnibus crime bill signed into law by President Bill Clinton, anyone who has served time in a state or federal prison may not receive the federal Pell grant for higher education.

Dallas Pell, daughter of the late Claiborne Pell after whom the grant was named, told the Washington Post in December she asked Congress in October 2011 to reinstate Pell grants for prisoners, but made little progress, calling it “an emotional issue.”

“When people get out of prison, the overwhelming majority of people who have gotten education in prison, they’re so profoundly changed,” the Post quoted her as saying. “They go into their communities. They go into social work … It’s in everybody’s best interest to have people come out [of prison] that are rehabilitated and feel good about themselves.”

In 1994, the majority who voted in favor of the bill argued that the penalties for crime were not high enough, and referred to a scenario in which a police officer’s child may not receive the Pell grant, whereas an inmate that officer jailed may receive it.

Dean Turner, a formerly incarcerated student under Coogan, is now free. Turner compared writing with Coogan to “therapy.”

“I had a lot of demons that were still trapped inside my body and my mind,” Turner said. “Things that happened to me, things that I’ve done, people that passed in my life that I thought I had gotten over it – but never did – me being shot multiple times … three different occasions, being stabbed, being abused by my moms … being an abuser … it was more or less therapy for me – because I was like – I was getting it out.”

Turner said he learned some negative behaviors from his mother, whose own behaviors arose from within the poor conditions of their broken home and the absence of Turner’s father.

“That’s how I looked at it,” Turner said through laughter. “I’m not a psychiatrist. Now that I look at it, I have a tight relationship with my kids … and my mom.”

Coogan referred several times to a dichotomy of “us-versus-them” which separates people emotionally and mentally, dividing communities along imaginary lines.

“That vision of the inner city here, and the West End there, is a metaphor for what happens mentally when we allow a ‘they’ to form,” he said. “And ‘they’ could be anybody. In this case, we’re talking about criminals, or people accused of crimes but it could be anybody different from you.”

Coogan said he wanted to address divisive ideologies when he began teaching. He said his students in jail were not so different from his university students.

“I was again amazed at how right I was, that my faith in humanity was intact, that most of the men I met were no different than any of the men or women I would meet in free society,” he said. “I think if more people got over their mental hurdles – or the maps – if they crossed the borders of their mental maps maybe a little more often, we wouldn’t have so much division, and strife, and ignorance.”

Coogan said he thinks the reason why the United States has become the largest jailer in the world is “precisely because we’ve decided not to cross those mental borders.”

He said by making an “other” out of people who do not fit in with unrealistic societal expectations, more people are jailed who suffer from mental illness, sexual abuse and drug addiction.

“Their lives are touched by drugs,” he said, “but they are not well served by being in prison. When we treat a health problem as a criminal problem … we create economic and ethical failure.”

Inmates participating in the workshop established by Coogan in 2010 bridge writing and art-making with community-based theorizing, Dr. Elizabeth Canfield said. Canfield co-directs Open Minds with Coogan, and helps put together a book of writing from the workshop.

“We do music and visual arts as well,” Canfield said. “All of our cultural production stuff is around critical and creative things that we’re reading and looking at. We deal with issues of gender, economy, politics, race, those kinds of things.”

Coogan said writing is not a “cure-all” but a community fostered by a writing workshop “can be an amazing, creative, life-affirming, hopeful place.”

He said at the core of successful programs addressing recidivism is a community of caring people.

“What we lack in our prison system now is that larger sense of welcoming a person back into a community,” he said. “Maybe even while they’re incarcerated, cultivating the community for positive things.”

Professor Jonathan Waybright described Coogan as a “mentor,” adding that his workshop “comes very close to therapy.” Waybright began work as a teacher with Open Minds around 2011, shortly after the program formally began.

“His ongoing encouragement to explore and adjust my teaching techniques to newfound teaching venues really leads to an exploration of myself,” Waybright said. “And hopefully this will not only make me a better teacher but a better human being.”

Waybright said Coogan makes himself available to his colleagues in a continuous effort to improve the program’s ability to reach students.

“I’ve even sat on his porch and discussed … options to try, and suggestions for me to try,” Waybright said. “He reads through all my materials and … really, that’s the real ‘mentor’ part.”

Waybright, who leads summer study abroad groups to Israel, and is planning an archaeological study in Palestine, said Open Minds has an equally profound impact on his students for its “expanding” collaboration between vastly different experiences.

“You’re putting those two life experiences together: young, 21 … college student along with folks who have this tremendous, albeit challenging, life experience,” Waybright said. “And so the real role – and this is where David has been wonderful – is to learn how to get out of their way.”

Waybright emphasized the importance of allowing the weekly three-hour workshop between university students and Richmond City Justice Center students to unfold.

“You’ve got to get those two groups speaking, discussing, reading each other’s writing together,” he said. “I can’t imagine a higher-impact student engagement.”

While the writer’s workshop is a powerful tool of academic and technical expansion, Coogan said writing alone cannot be credited for reducing recidivism.

“Everybody wants to know what will stop people from this cycle, but the problems are intense.”

He said writing gives people a perspective on problems such as drug addiction, joblessness, poverty and broken family relationships.

“Writing gives you a perspective on how to organize your life and to kind of pivot more gracefully between all the dilemmas that you face, because some of the men that I work with had already decided that they were going to change their lives before they started writing, and writing really gave them the support and the commitment.”

Coogan added that some writers discover they had not lived to their fullest potential during the workshop, where changes occurred during the writing process.

Coogan gestured to a filing cabinet behind his road bike.
“That whole bottom drawer is filled with their handwritten drafts,” he said. “Eventually, I realized that this was more than just a small memoir project.”

Many of their stories are going into his book, “Writing Our Way Out: Memoirs From Jail” which will be published next year. The book follows his own account of teaching the many dozens of men who came through his class, and features many of their stories as well.

Coogan said the intensity of his writers and their commitment overwhelmed him.

“They kept writing throughout 2006 all the way up until 2010. And they recruited new writers into the project. Things sifted out until eventually, the writers you see … stuck with it and kept in contact with me, and we are now ready to publish our book this spring,” Coogan said. “So I was right, I like to think, all those years ago when I said, ‘Some of them have to be as creative and as open minded and as committed as I am to the process of writing.'”

David Coogan authored the 2009 book “Moving Students into Social Movements” and he is co-editor of “The Public Work of Rhetoric: Citizen Scholars and Civic Engagement” which came out in 2010.

Whistle-Blower Protection Advances In Senate

RICHMOND — Whistle-blower protection moved forward this week after a Senate committee voted 36 to 1 in favor of House Bill 728, which would make it illegal to terminate an employee for reasons related to that person’s exposure of waste, fraud or abuse.

“Intimidation and threats are a problem when it comes to quashing the willingness of a public employee to look after the taxpayers,” said Delegate L. Scott Lingamfelter, R-Woodbridge, who introduced three bills on this topic — House Bills 728, 731 and 739. “So I think going forward, my intent is to correct a defect in the law because under current law it’s not clear what a court does when there is a ‘mixed motive’ for the dismissal of an employee.”

The legislation is important to people like Henry Lewis, a former Alexandria architect who won his whistle-blower case against the city last year, after a jury decided his 2011 termination violated the Virginia Fraud Against Taxpayers Act, passed shortly before Lewis lost his job. Lewis is represented by attorney Zachary Kitts, who claims on his website to be the principal architect behind the 2011 amendments to the FATA.

Kitts said he told legislators, including Lingamfelter, he thought the legislation was needed.

“There’s a risk that a defendant can say ’99 percent of the reason that we terminated this person’s employment was because they complained about fraud against the government,’” Kitts said, “but they could say one percent was a lawful reason and they could win the case based on that.”

Lingamfelter repeated Kitts’ assertion that whistle-blowers can be unjustly fired if the person who fired them for exposing fraud also claimed to have legitimate reasons to do so. Moreover, he introduced HB731, which could shift liability onto the agent who illegally terminates a whistle-blower, in addition to the institution itself.

HB731 was defeated twice in the Courts of Justice Senate committee by tie votes that fell, by the majority, along party lines. Different members failed to register votes for each session. However, if the committee had voted on the bill again — and all members voted the same as they did previously — the bill would have passed, making supervisors liable for illegal terminations, in addition to the institutions they represent. On the bill’s final consideration, one member was not present: Sen. Thomas K. Norment, R-Williamsburg. Although Norment favored the bill, the absence of his vote caused its defeat. Norment did not respond to inquiries regarding his absence.

“An abusive supervisor can escape any judgment in a court and it’s the city, town or county that bears the full cost,” Lingamfelter said. “Shouldn’t that supervisor bear some of the wrongdoing, since they’re the one who committed it?”

Director of General Services for the City of Alexandria Jeremy McPike is one such supervisor, according to Lingamfelter. McPike made the recommendation that Lewis be terminated as city architect during construction of a police station. He also ran against Lingamfelter in the 2013 election for a seat in the House.

“This language in this legislation coming from Lingamfelter doesn’t surprise me at all,” McPike said. “He invited a trial attorney to our debate last fall to try to intimidate me. He sat in the front row. It’s petty politics.”

The legislation, as introduced by Lingamfelter, states that a whistle blower may not be discharged, threatened or otherwise discriminated against, “in whole or in part,” for reasons connected to the exposure of fraud, waste or abuse.

“If it were in a township that I was in charge of, (McPike) wouldn’t have his job,” Lingamfelter said, “because I think that anybody who intimidates someone whose greatest sin is they’re just trying to point out taxpayer fraud should not be supervising other people.”

McPike said Richmond is beginning to operate like Washington, D.C.

“It’s legislation driven, frankly, by the trial attorneys again,” McPike said. “Obviously, they’re in cahoots with one another.”

Kitts said one of the bills adds the words “in whole or in part” to the motivation section of the statute.

“Any employee shall be entitled to all relief necessary if that employee is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against,” Kitts said, “’in whole or in part,’ because of lawful acts done by the employee.”

The purpose of existing fraud and abuse law is to “make whole” any person fired in retaliation for exposing fraud. When Lewis won his case against the city under the new law, he was then entitled to recovery in the form either of reinstatement of his job as city architect, or front-pay to match the number of years he could have worked; however, he had to appeal for that money. The city was denied its request for an appeal by the Virginia Supreme Court. Instead, the court heard Lewis’ appeal for owed equities and benefits pay.

At the hearing, the court asked Alexandria City Attorney Jonathan Mook how his city can ignore language in the FATA that says a person fired in retaliation “shall” be compensated for lost wages and benefits.

“How can you ignore the ‘shall’ in the law?” Justice William C. Mims asked. “How can reinstatement or front-pay not be required to make Henry Lewis whole?”

Mook said Lewis is not entitled to back pay because any estimations on how long Lewis might have worked for the city would be speculative, to which Mims responded by asking, “Wouldn’t any estimation be speculative?”

Lingamfelter’s legislation would turn the city’s defense into an argument against itself.

Mook told the court that Lewis was fired for at least two reasons: insubordination, or failing to maintain a harmonious work relationship with co-workers and supervisors; and Lewis’ refusal to sign false invoices at McPike’s request. Therefore, the city’s estimation of how long Lewis might have stayed on differs by at least seven years when compared to what Mook called “abusive” and “punitive” estimations by Lewis and Kitts.

Lingamfelter agrees there is an effort to politicize his whistle-blower legislation.

“I know that people like (Charlottesville Democratic Delegate David) Toscano want to politicize this. I got it. I understand that. That goes on down here all the time,” Lingamfelter said.

Toscano did not respond to requests for comment.

Co-Chairs of the Senate Committee on Courts of Justice Henry L. Marsh, D-Richmond, and A. Donald McEachin, D-Richmond, did not respond to requests for clarifications as to whether the bill would be voted on for a third time early this week.

HB728 awaits the signature of Democratic Gov. Terry McAuliffe. HB739 was left in committee.

This story appeared in The Virginia Free Citizen and Henrico Citizen.

House GOP Debates Medicaid Expansion Rejection Methodology

Del. James Massie (R-Richmond) said “private market incentives” will prevent the public from abusing the healthcare system.
Del. James Massie (R-Richmond) said “private market incentives” will prevent the public from abusing the healthcare system.

RICHMOND – House Republicans are echoing national GOP rhetoric in rejecting the Medicaid expansion strongly backed by Democratic Gov. Terry McAuliffe.

Delegate James Massie, R-Richmond, said Obamacare could likely “implode.” Massie said he handles the “business side” of Medicaid reform.

“I would say (it’s not going) particularly well so far,” Massie said with a laugh. “My opinion is if you think Obamacare was hard signing up for on the website … wait till you try to use it.”

Massie is a member on the Medicaid Innovation and Reform Commission, the committee tasked with reviewing and recommending reform proposals affecting the Virginia Medicaid and Family Access to Medical Insurance Security programs.

Massie said federal government inefficiencies lead to fraud and waste, which compromise up to 30 percent of its budget — a statistic he says he believes would increase if Medicaid is expanded in Virginia.

“If we do anything in the state of Virginia,” Massie said, “it’s going to look like private options. In other words, we’re going to take the money from the federal government that will allow these uncovered people to buy their own health insurance.”

Massie said Medicaid is abused because people go to the doctor with their Medicaid cards, and let the doctors do whatever needs to be done:

“I have no equity in the decision — no financial incentive to do the right thing, on controlling what you do to me, how much of it that you do, what it costs — much less, my health — taking care of my own self,” Massie said.

Massie also said studying other states could help the MIRC decide how to react to Medicaid expansion in McAuliffe’s budget proposals.

Arkansas and Iowa, for example, have not gone along with the government management of Medicaid expansion. Those states instead offer a “taxpayer recovery fund” that is supposed to grant federal money to the uninsured so they can afford to pay into private insurance plans.

Sen. John Watkins, R-Midlothian, proposed a similar taxpayer recovery fund, calling it a “pro-business, common sense solution.”

Massie said he was not familiar with the specifics of Watkins’ proposal.

The split in opinion hinges on a disagreement of whether or not to take any federal funds, which must be debated once a House budget is proposed.

Speaker of the House William Howell, R-Fredericksburg, said Watkins’ proposal — which still has not passed the finance committee — is Obamacare’s Medicaid expansion by another name.

“Medicaid and Obamacare expansion are poisonous words,” Massie said. “So (Watkins is) messing with the semantics, or he’s trying to get the right semantics right to create a pass.”

Massie said “private market incentives” will prevent the public from abusing the healthcare system.

“(People) are going to have to pay some money for the coverage,” Massie said. “They’re going to have co-pays. They’re going to have rewards for healthy living. They’re going to have work requirements — and work search requirements.”

Massie says the Republican Party’s proposal will incentivize the public to make healthy choices and good business decisions when choosing insurance.

“Not just ‘I don’t care. I go in. Give me everything,” Massie said, “because it doesn’t cost me anything.’”

A House budget must be produced containing each proposal to be debated against McAuliffe’s submitted budget plan.
Massie said the MIRC is looking for “the Virginia way.”

“If we find ‘the Virginia way,’” Massie said, “it’s going to look a whole lot more like private market insurance, rather than Medicaid.”

Watkins did not respond to requests for comment.

This story appeared in The Virginia Free Citizen.

Grant Would Fund Active-Shooter Training

Del. Michael Webert (R-Marshall) wants to grant Virginia police entry to computers without warrants, and fund military exercises for local departments.
Del. Michael Webert (R-Marshall) wants to grant Virginia police entry to computers without warrants, and fund military exercises for local departments.

RICHMOND – A bill is advancing through the House that would grant “active shooter” training funds to smaller police forces, which currently have no budget to accommodate the over-time pay to prepare for mass shootings.

Delegate Mike Webert, R-Marshall, said the Fauquier County Sheriff Department recently integrated an active shooter program. To do so, he said the department brought in experts from Fairfax, which has a larger police force. “(Fairfax) has one of the best task forces in the nation,” Webert said. “A lot of their guys end up training our smaller localities. So, we want to be able to provide our localities with the tools to help keep our children safe.”

Webert said the initial training cost Fauquier County money that was not in the police budget, which is why he introduced legislation calling for a $500,000 training grant. His bill would grant funding up to $50,000 per locality to provide overtime pay for police officers to be trained to respond in the event of a shooting.

Lt. James Hartman, of the Fauquier County Sheriff Department, said his department is “very much in favor of the bill and (supports) it 100 percent.”

Hartman said it is obvious the active shooter and training grant fund is needed in jurisdictions like Fauquier County. He described his department as “too small to be big, and too big to be small,” adding that the force has about 125 sworn officers covering patrols and stationed in schools. Hartman said overtime pay for active-shooter training exceeds the police budget. He said over-time costs between $16,000–$17,000 for each training session and consists of about 22 officers.

The training covers response tactics leading to the neutralization of an active shooter. Usually, Hartman said, his department will go into a school when students are out and stage a simulation using actors. County schools even have color-coded doors so officers easily can communicate their locations from within a building. Although his department trains for the first critical minutes of a public school incident, Hartman said “active shooter” applies to more than just school shootings. “Active shooter incidents across the country mainly have just been in schools,” he said. “But we’ve also seen active shooters in workplaces, such as the Navy Yard shooter (and) movie theaters.”

Hartman said his department already has conducted four training sessions and had a fifth planned in January.

Chief John Venuti of the VCU Police Department would not discuss specific training. “The VCU Police Department provides active shooter training to the campus community,” Venuti stated in an email. “We do not discuss specific information pertaining to training, technology or tactics.”

Webert said he hopes to convince the appropriations committee to create a grant from the currently unappropriated federal fund, which he said is about $15 million.

This story appeared in RVA News and Emporia News.

Trial Date Set For McDonnells

Bob and Maureen McDonnell could face trial as early as July 28.
Bob and Maureen McDonnell could face trial as early as July 28.

RICHMOND — A trial date has been set for former Gov. Robert F. McDonnell and his wife Maureen for July 28, following a Friday arraignment at a Richmond federal courthouse. Both pleaded not guilty to all 14 charges.

Federal authorities say the McDonnells repeatedly asked Johnnie Williams, a Richmond-area businessman, for loans and gifts totaling more than $165,000. The 43-page indictment alleges the McDonnells asked for money, clothes, golf fees, equipment, numerous trips and private jet rides in exchange for access to political clout.

Prosecutors allege that McDonnell helped promote Anatabloc, the company’s new product. The indictment states McDonnell pitched Anatabloc during an official meeting March 2012 with the secretary of administration in which they would discuss the state employee health plan.

“[Robert McDonnell] pulled some Anatabloc out of his pocket,” the indictment states, “and told the secretary of administration and one of her staff members that Anatabloc had beneficial health effects, that he personally took Anatabloc and that it was working well for him.”

The indictment states Maureen McDonnell traveled with Star Scientific in October 2011, speaking favorably of the product at corporate functions.

The report states that under Virginia. law, certain state officials and employees – including the governor and members of his staff – are required to annually file a standardized disclosure statement of their personal economic interests on or before Jan. 15 each year.

The indictment describes specific charges against Maureen, stating she intentionally avoided annual reporting requirements by transferring a total of 5,000 Star Scientific shares into newly opened brokerage accounts in the names of her five children.

“[Maureen McDonnell] further informed the broker that these transfers had to occur before year-end in order to avoid reporting requirements related to the ownership of Star Scientific stock,” the report states.

Federal documents state Williams took Maureen on an April 2011 shopping spree in New York City, in exchange for a seat beside McDonnell at a political event. The document states Williams spent about $10,999 at Oscar de la Renta, $5,685 at Louis Vuitton and $2,604 at Bergdorf Goodman, and later sat next to the governor.

According to the indictment, Williams sought independent studies in July 2011 to lend credibility to Star Scientific’s new product, Anatabloc. But when he approached the Tobacco Commission – a state research institution – it refused to fund the research as requested by a for-profit entity.

Among the gifts listed in the indictment was a custom Rolex watch inscribed with the words “71st Governor of Virginia.” Maureen McDonnell met privately with Williams to discuss ways the state could research Star Scientific’s Anatabloc. The indictment alleges Maureen complimented Williams’ watch, and asked him to purchase a similar watch she could give to her husband. Williams purchased the watch. On the same day Williams asked what she wanted inscribed on the watch, Maureen scheduled herself to attend an Aug. 30 luncheon with state researchers.

Text messages from 2012 between Bob McDonnell and Williams appear throughout the document, discussing share prices of Star Scientific.

“Good announcements lately,” McDonnell told Williams in a text, according to prosecutors. “Stock looks good. Hope all is well. You and [Williams’ wife] enjoy the 4th of July.”

In a text message sent to McDonnell, Williams reassured McDonnell that Star Scientific shares were continuing in a favorable trend.

McDonnell denied helping Williams in a public address this past week, and said he has done nothing illegal; adding that his behavior is characteristic of many elected officials in his position.

“I will use every available resource and advocate that I have,” McDonnell said, “for as long as it takes to fight and prevail against these false allegations and the unjust overreach of the federal government.”

Judge David Novak said Friday the McDonnell case will be tried in the courtroom and will not be tried in the media and ordered attorneys on both sides not to comment publicly on the case.

“The gamesmanship with the media ends now,” Novak said.

This story appeared in Virginia News Feed, Virginia Business, The Suffolk News-Herald, Northern VA Times, The Centreville Independent, Williamsburg Yorktown Daily, Emporia News, Gazette.net, The News Journal, and AltDaily.

Privacy Concerns Table Search, Seizure Bill

Del. Michael Webert (R-Marshall) wants to grant Virginia police entry to computers without warrants, and fund military exercises for local departments.
Del. Michael Webert (R-Marshall) wants to grant Virginia police entry to computers without warrants, and fund military exercises for local departments.

RICHMOND — A bill that would give Virginia police power to search private computers without a secondary search warrant was tabled after a committee determined the bill’s language failed to protect Fourth Amendment rights.

According to Delegate Mike Webert, R-Marshall, who is chief patron of the bill, the purpose of the bill “is not more money and power.”

Webert said his bill was meant to “streamline the process” of searching through a citizen’s computer, by eliminating the need for two warrants.

“A lot of times, what will happen is somebody (police) will go, and they will confiscate a computer looking for child porn – then they need to go and get another search warrant to search inside the computer,” Webert said. “We just wanted to streamline the process so that they (police) could go ahead and look into the computer.”

The bill first became problematic when it was written to include entire public networks or households, which would have enabled immediate searches upon seizure of any number of personal computers in a household.

After narrowing down the bill’s language to apply only to the personal computers of a certain individual, the House criminal law subcommittee determined there still were Fourth Amendment problems, which only can be addressed during the 2015 session, once the language is changed again.

“It has nothing to do with giving (police) more power,” Webert said in a mid-January interview. “It has nothing to do with that.”

He later said he highly doubts state police would have requested the bill with the intention of subverting Fourth Amendment rights.

However, Lt. James Hartman of the Fauquier County Sheriff Department said the bill would “absolutely” give police more power to investigate computers.

Hartman said the legislation would afford his department new powers to solve computer crimes including fraud and embezzlement, but “first and foremost,” he said the legislation would expedite police power to prosecute crimes against children, such as child sex abuse.

“We don’t have a computer lab here at Fauquier,” Hartman said, “so we almost always rely on partners in jurisdictions next door, and other counties to help with these examinations.”

The bill went before the Joint Commission on Technology and Science in December, which addressed Fourth Amendment and privacy issues. Present at the discussions were state police, the commonwealth’s attorney, prosecutors, the attorney general’s representatives and representatives from AOL, Facebook and Google.

Webert said he understands the corporations represented are known to be complicit with Fourth Amendment rights violations. He said the language of the bill changed dramatically after the corporate reps expressed privacy concerns.

The bill originally was requested of the McDonnell administration by the state police, said Delegate Kenneth R. Plum, D-Reston, as a means for expediting investigations into computer crime by removing the need for a secondary warrant to search a computer. Currently, probable cause must be established to obtain both warrants.

“It (the bill) dealt with a very practical problem they (police) had,” Plum said. “They sometimes needed to take it (a computer) to some place other than where they may originally have taken it for a warrant, and that was simply because I think the technology support they need, they don’t have every place in the state.”

Virginia already sends guns and drugs to labs without a second warrant, and Webert said computers are different. He said he wanted the language to reflect that

“To get gun particles off of a gun that had been fired doesn’t need a second search warrant,” he said. “Whereas computers – due to the new digital age – it’s the same but different.”

Webert said he wants to help police catch child pornographers, who keep illegal images on their computers. He said there were magistrates who complained about needing a secondary warrant to search through files on a suspect’s computer.

However, Webert also said he could not recall any specific case in which a magistrate said the procurement of a secondary search warrant became problematic to an investigation.

The resolution was to narrow the bill’s terminology to individual users on a given network and not to include the network of an entire business or household, Webert said.

“The language originally had ‘network,’” Webert said, “and (when) other people (are) using a network, there’s risk of invading their privacy.”

This story appeared in The Southwest Times and The Virginia Free Citizen.

McAuliffe Inauguration Renews Campaign Promises

Terry McAuliffe inauguration - Photo by Dana Carlson
Photo Credit: Dana Carlson

RICHMOND – Tight security and steady rain Saturday did not dampen the spirit or the campaign promises of Democrat Terry McAuliffe as he became Virginia’s 72nd governor.

McAuliffe, who has never held elected office, won this past November’s nationally watched election against conservative, Tea Party-endorsed Republican candidate Ken Cuccinelli. McAuliffe succeeds Republican Bob McDonnell as governor.

McAuliffe’s national supporters include President Barack Obama and former President Bill Clinton, for whom McAuliffe raised funds. Clinton was in prominent attendance at the inauguration, as were his wife, former Secretary of State Hillary Clinton, and Maryland Gov. Martin O’Malley.

McAuliffe took the oath of office in a formal morning suit from Virginia Supreme Court Chief Justice Cynthia Kinser. The entire event took place in front of the historic Capitol building designed by Thomas Jefferson in 1785 to resemble a Roman temple.

Speaker of the Virginia House of Delegates William Howell, R-Fredericksburg, opened the ceremony by reminding the audience of about 1,500 people they were not supposed to be using umbrellas. Members of the audience were searched by security — men in trench coats and flat-brimmed hats — sometimes more than once at the same checkpoint.

“Members and guests are reminded that you’re not supposed to be using your umbrellas,” Howell said, as it rained, heavily at times. “But if you don’t think you’re blocking anybody else’s view, it’s OK with me.”

McAuliffe’s inaugural address echoed themes from his campaign, including expansion of Medicaid, women’s rights and gay rights. “The Virginia way” is the national model for fiscal discipline,” McAuliffe said. “We are one of the best states to do business because we have worked together to minimize regulations and to keep taxes low.” He also called the commonwealth’s business model “a tradition we should be so proud of.”

McAuliffe thanked former Gov. McDonnell for his leadership, noting a smooth transition into his first day as governor. Near the end of the speech, McAuliffe reminded the public that he was about to issue an executive order putting a $100 limit on gifts to himself and other politicians. After the ceremony, McAuliffe signed Executive Order No. 1, prohibiting workplace discrimination, with new protections for transgender people.

McAuliffe previously had told a room of reporters in December that he “would be inclined” to issue an additional executive order allowing fee waivers for Freedom of Information Act requests that fall under the “public good.” Such provisions exist in federal law but not in Virginia law. Such an executive order would protect the public from prohibitive costs associated with filing a FOIA request, which can have a chilling effect on disclosure.

The new governor is facing a 20-20 Republican-Democrat split in the Virginia Senate. He noted the value of bipartisan consensus, and again congratulated McDonnell on a job well done, referencing a major transportation bill passed with bipartisan support the previous year.

A 19-gun salute by the Virginia Army National Guard, airmen from the Virginia Air National Guard and members of the Virginia Defense Force preceded a series of appearances by religious leaders, who blessed the inauguration with ceremonial dance and speeches.

Representatives from Virginia’s 11 American Indian tribes performed a blessing march and stopped to play drums in front of the governor. Rabbi Jack Moline of the Agudas Achim Congregation in Alexandria gave McAuliffe his blessing in a speech.

This story appeared in Virginia News Feed, The Virginia Free Citizen, Suffolk News-Herald, Potomac Local, Emporia News, and South Hill Enterprise.

Governor-Elect Promises Ethics Reform, Transparency

Governor Elect Terry McAuliffe said he 'would be inclined' to order FOIA reform, but offered no further details.
Governor Elect Terry McAuliffe said he ‘would be inclined’ to order FOIA reform, but offered no further details.

RICHMOND – Gov.-elect Terry McAuliffe said Wednesday that he would push for greater transparency and ethics reforms in state government.

McAuliffe spoke to a roomful of journalists after a panel discussion on political journalism ethics and political finance and gift-disclosure organized by the Associated Press.

The Northern Virginia businessman said he “would be inclined” to “issue an executive order” to waive the fees currently charged to citizens and journalists requesting government documents under the state’s Freedom of Information Act.

Under the federal FOIA, federal officials can waive the often prohibitive costs of a public records request if it pertains directly to the public good, but the state does not.

“It’s the first I’ve been asked this question,” McAuliffe said. “I think it’s a great idea. I will take it back and talk to my transition team about it.”

He said he was not aware that Virginia’s Freedom of Information Act lacks a provision to allow fees to be waived if the FOIA request is in the public interest.

Echoing President Obama’s campaign slogans, McAuliffe said he would set a new standard of “transparent, accountable, state government that is beholden only to the taxpayers who fund it.” He added, “Virginians should never have to question who their leaders are putting first.”

The best way to ensure political transparency, McAuliffe said, is to issue an executive order limiting gifts to politicians to no more than $100, increasing penalties for violating current disclosure laws and eliminating conflicts of interest; however, McAuliffe did not offer details about how the order would achieve those ends.

McAuliffe, a Democrat, said his almost-daily talks with outgoing Republican Gov. Bob McDonnell often extend into weekends, facilitating what he called “the smoothest transition ever” as he prepares to take office.

In spite of their talks, however, McAuliffe said he knew only as much as the newspapers have reported about the federal investigation of McDonnell’s relationship with a dietary-supplement manufacturer.

McAuliffe spoke to about 50 journalists at AP Day at the Capital. The event, held at the Richmond Times-Dispatch offices, was organized by Virginia AP Managing Editors, the Virginia Capitol Correspondents Association and the Virginia Pro Chapter of the Society of Professional Journalists.

Also speaking at the event was Republican Delegate Bob Marshall of Manassas. He said not all secrecy is bad, citing the 1776 Constitutional Convention that took place behind closed doors without public oversight.

Marshall said people behave differently when they know they’re being watched, and limiting gifts to $100 would “force political activity underground.”

Marshall said a “no gifts” policy would lead to prosecutions for unreported golf tips, information and special discounts; for example, getting a car at half price because of a person’s status as a politician. Marshall said whether a politician received discounts is “not in the public interest.”

This story appeared in Fauquier Now, Virginia Business, and Henrico Citizen.