Monday, November 21, 2005

Grace and Ellwood City

Western Pennsylvania was full of mysteries and wonders for me as a child. My hometown was peppered with woods and creeks. They were a natural theme park for a little girl or boy. On my way home from West End Elementary School, I would detour with my friends to the little patch of woods between Crescent and Border Avenues to play tag. We would lose ourselves in fantasy weaving through.

At the end of my street was the flawless image of a beautiful grassy knoll. I loved it from afar. It was perfect enough to be a landscape painting, and I could not take my eyes off of it. The knoll was actually across a large creek and laid on the mirror side of the valley. Although it was also in my town (on the road to Wampum, the nearby township), my mother always responded the same when I asked her to take me there. It was too far away.

Just below the painting, one block from my house was a playground. I remember a monkey bars and lots of kids of all ages swinging and screaming from them. The playground was covered with a dust that got in our shoes. Our mothers yelled at us. But we loved to play on the large mountains of the brown kitty-litter like material that made the dust. There were tons of little bits that sparkled like jewelry. Finally, I was a little rich girl, or so I pretended as I stuck my hand in the brown material and the shiny specks trickled off my hand. Did the mountains occur there naturally? I wondered. Did they spring up from the ground like the giant Rockies? I assumed.

In reality, those mountains belonged to the factory on whose grounds the playground had been provided. This company graciously made playground was available to us at all hours, even though it sat inside the company fence. The gates were never closed. My brothers remember ballfields and spending most of their waking hours down there playing football and softball and whiffle ball, all seasons of the year. Behind the kitty-litter piles were railroad tracks. The bad boys would walk down to the tracks to smoke cigarettes. I never ventured too far beyond the playground. Although I liked the piles, anywhere beyond them gave me the creeps.

My neighborhood was a working class neighborhood of proud, hardworking Italians and Germans and Catholics who had many, many children. We were the only black family in the immediate vicinity. And we weren't Catholic. But we did have seven children. One day every summer, all the children from all over my West End neighborhood met under that the pastoral painting for the playground picnic. There were games and food and crafts. It was the best day of the year.

Sadly for me, my beloved playground closed when I was seven. It was moved to a less convenient location. The new location across the road and up the hill had no landscape painting as a backdrop. It had no giant piles of brown and shiny material for us to play in. A whole new set of families were the lucky ones who got to live next to the playground. And my old playground and the old factory that hosted it became a sad, lonley place. A ghost town.

I hadn't thought about the playground at the bottom of my street in decades, until yesterday, that is. My brother, who lives in our family home on 13th Street, told me he'd received a letter from the government. It was about the playground.

Years ago, I lived in Denver. I was a lawyer for the Environmental Protection Agency. That was where I first heard of Libby, Montana. Libby was the location of a vermiculite mine owned by a company called W.R. Grace. The vermiculite rock extracted from there, as it turns out, was laced with naturally-occuring asbestos. Libby miners, their wives, and their children have been dropping like flies over the last several years from illnesses stemming from asbestos exposure. Totally coincidentally, I saw two segments on NightLine about it two nights in a row a few weeks ago. The miners ingested the tiny fibers while they mined the vermiculite. They unknowingly brought the lethal fibers home on their clothing. Their wives washed that clothing commingled with the family wash. Everyone died.

Asbestos-related illnesses include asbestosis, lung cancer, and mesothelioma, any of which may take up to 50 years to develop. (I read this on a mesothelioma web site.) Cigarette smoking increases the chances of developing one of these illnesses, because it impairs the lungs ability to expel foreign objects, such as asbestos fibers. (Or so I'm told.)

My brother had misplaced the letter he'd received from the government. But he remembered that the content was about the product the factory manufactured. Zonolite. I know enough about W.R. Grace to know that Zonolite was one of their trademark products. It was some sort of home insulation. I asked my brother, "Do you remember the name of the company?" He said no. I said, "Was it W.R. Grace?" YES! Yes, he said. My heart sank into my brand new embroidered French cowboy boots from Jubilee on West 8th.

W.R. Grace processed vermiculite from the Libby mine at 200 facilities across the nation, turning it into Zonolite. Of those 200 facilities, 28 processed a whopping 80 percent of the Libby vermiculite. The factory at the end of my street with my beloved playground beneath the beautiful landscape across the creek was one of those 28.

After getting the incomplete news from my brother, I drove from Western Pennsylvania to New York, straight to my wireless connection. Cruising through asbestos and superfund web sites, I found myself on the site of the Agency for Toxic Substances and Disease Registry -- ATSDR. This agency is a part of the Centers for Disease Control. It was created to study the health of communities near superfund sites (for those of you who don't know American environmental law, these are the worst, most contaminated properties in the country). So. ATSDR's web site had a link for Libby, Montana. I clicked. My heart racing. I sped through the text that explained an investigation into the places that received the Libby vermiculite. The beats grew faster. Click. New Orleans, East Hampton, Massachusetts, . . . Ellwood City, Pennsylvania.

That Sunday night, I sat stiffly and silently in a state of catatonia for what felt like hours. It was all too surreal and painfully ironic. I had devoted my career to helping communities deal with health and environmental issues resulting from the disproportionate distribution of polluting sources in low income and people of color communities. All of a sudden, I was suited to be my own client. One day and one letter from the government uprooted my world as I'd known it and turned it on its head.

I spent most of the next day phoning my siblings to let them know they'd been exposed to asbestos and telling them to go to the doctor. I e-mailed them the ATSDR fact sheet for Ellwood City. It said that anyone who lived within a few blocks of the factory may have been exposed to asbestos when fibers were released during the processing. We lived one block away. It said that children who played in the piles of vermiculite may have been exposed to asbestos. It said to stop smoking, see a doctor, and tell her/him we'd been exposed to asbesots. Give her/him a copy of the fact sheet.

No where did it mention the playground. Did they not know? I called ATSDR to speak environmental professional to environmental professional. I was the second person to tell them about the playground. They had mailed out their fact sheet to residents in my town within a half mile or so of the factory. One person managed to read it to the end and make a phone call when they saw no mention of the playground. Just one person. I wonder if any of my other former neighbors read it. What about the Vitullos? They lived right next to the fenceline. Had they read it?

The ATSDR scientists asked me lots of questions about how the material looked. If it was darker, it was likely "waste rock." Waste rock was what was leftover after the vermiculite was processed. It had been difficult for the scientists to piece together what happened at the facility because it closed 30 years ago. But it seemed logical that the material we played in was the waste rock, since it had no value. People were free to take it and use it to line their driveways. It lined the ballfields at the playground. ATSDR thinks the piles are buried on site.

Processing the vermiculite concentrated the asbestos in that waste rock.

Tomorrow I visit the doctor.

Saturday, November 12, 2005

The Google Tool for Crime Fighting, Part II.

I'm always a bit embarrassed when someone tells me they've googled me. I used to come across that in the dating world. My husband googled me way back when. And then there were the online dating guys. Yes. I am a veteran of the online dating world. I was unsuccessful, but in hindsight I highly recommend it. Sometimes it works. Anyway, it is always a bit frightening when someone tells me they've googled me. It's not that there are indiscreet Paris Hilton-esque photos of me online. It's just that I feel a tinge . . . exposed.

So there I am in the district attorney's office. Just as I am drinking in my surroundings, the aromatherapy candle, the misplaced bathroom sink (please review Part I), Ms. Assistant District Attorney puts me at ease by telling me that she's already googled me. All she needs is my date of birth. Date of birth? Huh? But let's get back to this google thing. She told me she'd googled me, and obviously I'm a credible witness. Really? The web page my husband built for me is pretty convincing, I guess.

Ms. A.D.A. then asks me to begin my story in narrative. I can recite the story by rote without variation, and I do. I describe how close I was to the police and the person I call the victim (they call him the defendant). She asks me with which hand the officer laid the first punch to his face. I tell her I'm not sure, but it was most likely the right hand. "Why?" she asks. Duh lady. From where I was standing, if he'd used his left hand his back would have been towards me at some point. His back was never turned towards me during the incident. My Jessica Fletcher reasoning was impeccable -- indeed, all those Murder She Wrote episodes paid off big. I think this is when Ms. A.D.A. mentioned to me that the officer broke his hand.

The two officers had actually come to her office days after the arrest to give them their version of the story firsthand. She told me they were completely convincing. Do they give cops acting classes in the academy, or is the ability to lie innate?

Anyway, when I got to the part of the story where they were handcuffing my Lost Boy and the shorter officer had his foot on the guy's neck, Ms. A.D.A. interrupted me. "Let me just say to you that there are some police techniques that you may find strange but are completely consistent with police procedure." Ok. I said, "You asked for my story. I'm just telling you what I saw." She shot back, "I know. But I'm just saying that this may have been police procedure." Ok. I said, "You asked for my story. I'm just telling you what I saw." And let me just say right here that I'm glad I never became a D.A. I thought I wanted to back when I was in law school. I interviewed with the Alameda County D.A.'s office in Oakland. They didn't want me. Praise the lord. Ms. A.D.A. needed to have the last word in this exchange. I let her have it while allowing my mind to drift off to thoughts of the infamous L.A. choke hold. It was police procedure. It cracked the necks of countless suspects before it was outlawed in the 90's.

After I finished my story, she went to get her supervisor. He was a typical career prosecutor. He was tall, thin, handsome. His silver hair contradicted his boyish appearance. His clothes were neat in style, almost collegiate or preppy, although slightly rumpled. He wore a blue striped button down shirt, khaki pants. You get the picture. He slumped into a chair next to me and says, "Hello professor." Let me explain here that I have taught graduate school for the past 10 years. It was all there on google. I happen to teach now at the law school from which this comely fellow graduated 30 years ago. He told me his son just graduated from there this year. Did I know professor so-and-so? Nice ice breaker. I could see right through they guy, but for some reason the charm worked. Like magic.

He tried to trick me into making mistakes. Had I ever witnessed violence before? As if I was a chronic witness or a committed crusader against the police. "I'm a small town girl Mr. Supervisor Man. I have never seen live violence."

What did I tell the 911 operator? I told them two cops were beating up a man on 32nd Street. "But you just told us that only one cop was doing the beating. Which was it?"

I replied, "Ms. A.D.A. told me she ordered my 911 tape, so you'll know soon enough exactly what I said to them. There was just one cop beating my Lost Boy. The other watched."

I left that office feeling a bit shaken. I still knew exactly what happened that day of the beating in excrutiating detail. But I felt like they had come close to besting me. It was sort of like coming out of a job interview and not knowing for sure that you'd won them over, even though you normally interview like a pro. One reassuring thing was that the supervisor concluded the chat by telling me that they had criminally prosecuted cops in the past. If I should run into any of the other witnesses, please give them Ms. A.D.A.'s card and urge them to call her.

The next day at work, Lt. Internal Affairs paid me a visit. This time, it was a scheduled visit. He came with a partner. They were dressed in suits, just as I imagined they would be. I didn't notice the quality of their suits, but if these guys were true to their TV/film stereotypes the quality was bad. I did notice lots of garish, bright gold jewelry. Klunky gold rings with diamonds. Maybe a chain. Yeah -- the good stuff.

We sat in the conference room in my office. The three of us crowded around one end of the over-sized table that had been donated, no doubt, by one of the big law firms that support our work. The poorly lit conference room heightened my anxiety about doing this photo array. The I.A. cops informed me that they had brought 12 photos. The police officers I identified by name may or may not be in those photos. Let's pause here. I identified the officers by name. Why then did I need to do the photo array? Well. What Lt. I.A. and his friend told me was that I had been inconsistent in my story. The I.A. friend (to whom I had never spoken before this very moment) told me that I'd told Lt. I.A. at one point that the short cop did the beating, then I told him another time that the tall one had done the beating. I'll give these I.A. guys the benefit of the doubt. Maybe THEY confused what I said. But I as never confused. I clarified myself. I told them I would do the photo array. But for the record, I have always been clear that the short one was the ass-whooping f***. (Excuse my German.)

I should also mention here that the I.A. men brought a tape recorder. They asked me if they could record the dialogue. I said yes, of course. But every last bit of this protocol was intimidating. And I'm not one to be easily intimidated. I'm the person who a couple of days ago confronted a guy on the subway for taking up too much room. "Did you know it's illegal to take two seats on the subway?" The guy's arm was jammed into my ribs, but I slid myself so snuggly between this french-fry eating loser and the next guy, that the guy on the other side of me got up. I stubbornly refused to budge, even though there was now an empty seat next to me. I let the guy, who was the size of a linebacker, keep his elbow in my side. He gave me a good dose of stinkeye and said with the most venom he could muster without outright smacking me upside the head, "I can't help taking up two seats. Now can you back up off me?"

Normally, I don't pick fights with people in the subway. You just don't know what kind of crazy you're dealing with, and half the people on the subway take up two seats. The subways just aren't built for the girth of the larger New York subway rider. But I was having a bad PMS day, and I didn't feel like standing.

Where was I? Right. Intimidation. Tape recorder, two guys with bad jewelry, poor lighting, 12 photos. They had me read and sign a piece of paper that said that the appearnance of the guys in the photos may have changed. They may or may not now have facial hair. They may have lost or gained weight, meaning that I could not rely on the photos to bear any actual current likeness to the people they depicted. Nice. They pulled out the first set of six photos. They were photocopies of tiny police ID badges. They were grainy, out of focus. I studied the photos nervously. I was supposed to initial below the photo I thought was The One. I easily eliminated four of the six photos, but I wasn't sure about two. I asked to see the second set. Like the first set, the guys all looked more or less the same. White, full faces, jarhead haircuts. In this set, they did throw in a guy who could have been Latino, just to shake things up a bit. I didn't recognize anyone on that sheet. Back to the first sheet. I refused to sign, but I told them aloud for the tape recorder that photos number five and six looked familiar. In fact, I believed that number six was the beater. The room was hushed. They began to pack up the photos, without disturbing the quiet.

The police never tell you if you've successfuly identified anyone in a lineup -- whether it's a live lineup or a photo lineup. They asked me if I'd talked to the D.A. I told them that in fact I'd met with them the day before. "What did they say?" Not much, I told them. They kept their cards pretty close to their vest. I told them they were trying to figure out whether to charge the victim (the defendant) with felony assault on a police officer or a misdemeanor -- disturbing the peace I guess. (I'm not sure how he disturbed the peace, but this may have been something that happened inside the subway, before I ever saw them.)

I left the room briefly to retrieve a copy of the account I had written down right after the events occured. They asked me if I'd written anything down. I told them the truth, that yes I had. I don't know if it is common for eye witnesses to crimes to write down their account while it's fresh in their minds, as I had. Or did the police suspect I'd done this because I'm a lawyer? Who knows. When I came back with the account, they asked me again. "What did the D.A. say?" I told them this time, "They said they'd criminally prosecuted police in the past." Tee hee.

I mischievously punctuated that statement with silence, big silence, before adding, "But they'd like me to find another witness. They gave me their business cards to hand out in case I recognize and run into any of them." The two I.A. guys audibly exhaled. I almost expected them to slap each other on the back in congratulations.

"Oh yeah," one of them said. "They'd want a corroborating witness."

I don't know what they'd want. But I do know that things have been quiet since that day. Later that same day, I spoke to the supervisor who works in the office of the guy that represented the Lost Boy during the arraingement. I called him with the information that Ms. Chocolate (my office neighbor) had found. I spoke with him twice. Finally, the defense knew that there was a witness. No one has contacted me since. The Brady material sits in a pile of papers in my office, unopened. I can only assume the charges against my Lost Boy were dropped, otherwise the defense would have wanted to meet with me.

I feel somewhat irresponsible in that I haven't contacted the D.A. to find out for sure. I'm almost afraid to reopen this chapter in my life. Since the quiet, I've had time to focus fully on my own life, my work, my family. My Lost Boy no longer keeps me awake at night. But this ordeal has given me an understanding of why witnesses don't come forward. It takes alot of time, which could be real problem for people who don't have flexible work lives. For example, it would be a huge sacrifice for an hourly worker to invest the time to be a witness. Also, process is by nature fraught with intimidation and people trying to punch holes in your story. The hole-punching is not necessarily malicious. I understand that it wasn't so much about me as it was about assessing my certainty and credibililty. But it feels like a thankless attack, when you're just trying to do the right thing. Someone who was less confident and perhaps wasn't a lawyer might crack under the pressure.

Each time I use the subway station at 32nd and 6th Avenue, two times most days of the week, I recoil a bit. Every time I see a Port Authority police officer, I keep my head down while trying to steal a studied look at the faces. Yesterday, there were four Port Authority police cars parked at the corner, and about six officers were in close proximity. I ducked hurriedly into the subway.

Sunday, November 06, 2005

The Google Tool for Crime Fighting, Part I.

I'm not a big fan of police shows on TV. There was a time once when I was mildly devoted to "Homicide" reruns. And I used to like the first half hour of "Law & Order" back when there was only one. And, my husband can tell you about my more recent addiction to "Murder She Wrote." It comes on the Biography Channel four times a day. (In my defense, I only liked Mrs. Fletcher when she was solving murders in Cabot Cove. Her ill-thought move to New York City lost me.) It was tough to give up people like George Clooney, Courtney Cox, Kim Catrell, and Megan Mullally in the 80's with shoulder pads as big as their hair (George's affliction was the mullet cut rather than the size). The people rising to fame were as captivating as those descending. But how many times can you bear to watch Chad Everett, Buddy Hackett, and that Latino guy from "Barney Miller" hamming it up in desperation? My friend Kate has a name for this feeling of utter embarrassment for other people. It's called "vantrum." You heard it here first folks.

Anway, with the help of abject feelings of vantrum, I managed to kick the MSW habit like a champ.

Seeing the Lost Boy being pummeled was nothing like TV. I had never seen violence up close and personal, and I hope to never see it again. I was surprised that I didn't hear the punches or see sweat or blood flying in slow motion. It's just bare knuckles brutal without the special effects.

I thought about the Lost Boy all the time. Sometimes he kept me awake at night. I was ashamed for the police and for my country. This Lost Boy was a hero to me. No matter what he'd done when he arrived in NewYork, whether he was a Nobel Prize winner or a bona fide criminal, he was a hero.

I have the same feelings about people who lived through the American institution of slavery. They were survivors. They survived the horror of the Middle Passage, survived being stripped of their language, religion, and families. The survived the indignity with utmost dignity.

I am a direct beneficiary of the survival of the enslaved African people of the Americas. Among my many feelings about slavery, the strongest is gratitude for those enslaved. I am alive because they suffered. Illogical as it may seem, somehow I have a similar feeling of gratitude toward modern-day survivors of African atrocities. I don't think I could survive as this Lost Boy has. His courage to survive the Sudanese civil war is unfathomable and before my eyes enshrouded him in the calm he exhibited at the hands of two of New York's finest.

So a day or two after I lodged my formal complaint with the Port Authority police, I received a phone call from Internal Affairs. I gave him my story. He asked questions. What hand did the officer use to punch the Lost Boy? Uh, the right hand? I hadn't really paid close attention to that particular detail, being overwhelmed as I was with the fact of the beating. Which cop was shorter and which was taller? Easy. Cop number one was shorter than cop number two. You just never know what details will come in handy. But I pretty much had them down. Lt. I.A. asked if I would be willing to be a witness in a criminal proceeding. Of course I would. He asked if I could identify the cops in photo lineup. I was pretty sure I could. Lt. I.A. told me he'd be in touch. Fan-tastic.

I am an environmental lawyer, completely sheltered from the fast-paced and dynamic world of criminal defense. Fortunately, I have a colleague who is a former police brutality lawyer -- for the record, she defended the victims, not the police. So my colleague took me under the comfort of her wing. She worked tirelessly trying to find out the identity of the Lost Boy's defense lawyer. She inquired among legal aid lawyers who may have done arraignments on the date my Lost Boy would have been arraigned. She talked to private criminal defense lawyers. She explored every avenue, yet with no answers.

The day after I spoke with Lt. I.A., I got a call from an assistant district attorney in Manhattan. Lt. I.A. had given her my name. She told me she was about to indict my Lost Boy on charges of felony assault on a police officer. Pregnant pause. She told me she was about to indict my Lost Boy on charges of felony assault on a police officer. I calmly explained to her that she had it wrong. The officer had beaten the suspect. She told me she was only a fourth year ADA., would I be willing to meet in person with her and her supervisor? Suddenly, she had to take another call. I exhaled.

My phone rang again. I didn't answer. It was Lt. I.A. calling to set up an appointment for a photo array. He left a message.

My colleague jumped into action again, trying desperately to find the defense lawyer. I should be talking to the defense with this exculpatory evidence, not the DA. And just what were the police trying to prove with a photo array? I had given them the names of cop number one and cop number two. What more did they need?

I managed to avoid the DA and Lt. I.A. for a day. I did have a paying job I had to do. During that one day, Lt. I.A. dropped by my office. I happened to be out. I felt like I was being stalked.

Still not knowing the identity of the defense lawyer, I took a call from a kindly criminal defense lawyer who wanted to give me some advice. I greedily gobbled it up. He told me to cooperate as best I could with the police and the DA. He asked me if the Lost Boy was still in jail. Still in jail? I hadn't considered that. What if my avoidance was prolonging his incarceration? Do the photo array, he said. Meet with the DA. They would be looking for holes in my story, but so what? I needed to get this guy out of jail.

The lawyer told me to do one important thing when I met with the DA. He told me to prepare an affidavit explaining what I'd seen. In a cover letter, identify it as "Brady material" so that the DA would have to share it with the defense. I had no idea who Brady was or what it meant to supply Brady material. Google had no idea either. But I went with it.

As I was dutifully preparing two original copies of the affidavit -- one for the DA and one for the defense -- the woman with the office next door to me asked what I was doing. I'm fond of her. She keeps chocolate in her office. I told her the Brady story. A disability rights lawyer, she had no idea who Brady was either. But she had one contact in the criminal defense world and offered to use it to try to get to the Lost Boy's defense lawyer. I was grateful for her offer, but as I asked her to use the contact I didn't have much hope. She was as alien as I was to the criminal defense world. It was a hail mary.

I rushed off to the DA's office, Brady material in hand, without an answer yet from the my friend with the chocolate's contact. I hopped into a cab that struggled doggedly through the notorious Manhattan traffic to get downtown to the sprawling concrete complex of government office buildings. Through security I went with my plain brown envelope full of precious Brady material. Up the elevator to the shabby little office that smelled of a Glade aromatherapy candle and burning matches. There was a bathroom sink in the young ADA's office. Hmmm. Next to the sink sat a young woman with reddish hair. The ADA introduced herself and asked if the young woman who was some sort of administrative assistant could sit in on the meeting. She wanted to go to law school. "Of course," I replied. Moments later, I wondered if that was so smart. I hate to seem paranoid, but perhaps the motive here was to use her as a witness to impeach my testimony. Ack!

Anyway, the ADA asked me to tell my story. Oh yeah. My Lost Boy was, indeed, still in jail. But he hadn't been indicted yet. My meeting was supposed to inform the DA's decision on whether to seek an indictment for felony assault on a police officer or a misdemeanor -- probably disorderly conduct. (Do I tell you here or later that cop number one broke his hand on the Lost Boy's face?) As I was settling into my account, my mobile phone rang. It was sort of embarrassing. The ring is a song, "A Nameless Girl." Kate talked me into that song. I've always wanted to change it, but then I figured I wouldn't recognize my own ring. I did change it once to "I Think I Love You" by the Partridge Family. Somehow, that song made me feel vantrum for myself.

I quickly checked the caller ID and noticed it was my office calling. I answered. The disembodied voice simply said, "I know who the defense lawyer is." It was my good friend who keeps me outfitted in M&Ms, the peanut butter variety. I thanked her and went back to my story, discretely folding my Brady material up and stuffing it into my bag. Now I could go directly to the defense with my story.

But first, I had to finish up with the DA.