Baby Bou Bou And The Busted Plan

Remember Baby Bou Bou?

baby-bou

There could have, there should have, been a prosecution of the police officers who did this by throwing a flash bang grenade into 2-year-old Bounkham “Bou Bou” Phonesavanh’s crib in a mistaken SWAT raid. There wasn’t.

But there were still the lies in the reports to cover up this crime.  Ken Womble’s modest proposal at Fault Lines was that we start with the lies, the perjury, designed to conceal police officers who do harm.

But what if we took a different approach?  To borrow from the great American past-time, what if we stopped swinging for the fences and tried to drive in some runs with a series of pragmatic singles?  What if we stopped focusing on the murderers and instead focused on a group that is much more prevalent in American law enforcement?

What if we start going after the liars?

I called this the broken windows approach to police prosecutions. After all, lies are far easier to prove, avoid the problems inherent in the defense of police fear that they may not make it home for dinner and don’t implicate the conflicted concern that if we stifle the ability of police to act for their own protection, they won’t be there when we need them.  There is much to commend Ken’s plan.

And what better laboratory to try it out with than a baby maimed needlessly and subsequently covered up?

Nikki Autry, a Habersham County deputy who was serving as a special agent with the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, signed the application for the warrant that authorized the early-morning, no-knock raid, which found no drugs, guns, or money and left 19-month-old Bounkham “Bou Bou” Phonesavanh burned and mutilated by a flashbang grenade that landed in the playpen where he was sleeping. Autry’s affidavit included several crucial misrepresentations, and during her trial the magistrate who issued the warrant testified that he would not have done so if she had told the truth.

Could this be teed up any better?

GAINESVILLE, Ga. — Jurors on Friday found a former Georgia sheriff’s deputy not guilty of charges stemming from her role in setting up a “no-knock” drug raid that severely injured a toddler when a flash grenade detonated in his playpen.

Nikki Autry was acquitted after trial in federal court.  What evidence was offered?

Magistrate Judge James Butterworth testified during the trial that he wouldn’t have authorized the warrant if he had known the real details of the case.

“If there had never been a search warrant Bou Bou would’ve never been injured,” Assistant U.S. Attorney Bill McKinnon said in his closing argument, according to The Atlanta Journal-Constitution. “There’s a direct causation.”

That the information was false was beyond question.  And the jury acquitted.  But maybe that was just a fluke, some excellent defense lawyering, and the other cops will go down, down, down, for the lies that ended with Baby Bou Bou’s being maimed?

Autry was the only law enforcement officer charged in the raid.

Or maybe, despite the modesty of Ken’s proposal that cops be prosecuted for lying, if not for the more difficult and problematic crimes and the harm they inflict, even that is too much to ask.  And if this plan is busted, what’s left?

20 comments on “Baby Bou Bou And The Busted Plan

  1. Ross

    What’s left? Bow down before your police overlords, they know what’s best for you.

    If juries won’t convict, and police management continues to be sourced from the ranks of former patrol officers, we are left to the tender mercies of the elected officials, who seem to be firmly on the side of letting police get away with just about anything. That’s not too surprising, since every time an official mentions something about reining in out of control police, they get tagged with a “soft on crime” label.

  2. dm

    As quaint as it may be, “if at first you don’t succeed, try try again.”
    Though convicting police officers is obviously not easy, if there is a parade of lying officers brought before the courts the convictions will happen at least sometimes.

      1. REvers

        I note two interesting things about this.

        1. Georgia.

        2. Baby Bou Bou has a decidedly non-murrikin name.

        It could be just a coincidence, though.

      2. Wrongway

        Well Sir, you just have to keep pushing..
        as you do with an idiot client, or a god-like judge, or a tyrannical prosecutor.. (all at the same time).. Now is the time to keep pushing. The Public’s Magnifying Glass is on the Govt. in many ways right now. Think of civil forfeiture, militarized policing, stop & frisk, recording the police, etc..

        Think back 10yrs ago. This would never have even gotten any publicity at all. In a weird way, I’m actually thrilled that you’re writing about this. But only because of the coverage it’s gathered, there would be no outrage at all.
        Maybe it’s a ‘loss’ in that case, & maybe it was the perfect case for ‘KW’s Rule’ (which was just published a few days ago), but like a slug looking for cat food, we move on.. *1

        This is one case that went bad, & as I’m sure you could tell me all kinds of horror stories about how this happens, … well, unfortunately, it happens..

        So, what do we do?
        Keep Pushing..

        1. Wrongway

          *1- I need to apologize for using an analogy of slugs on a Criminal Defense Lawyers Blog.. but those things are relentless.. slow, but relentless..

          1. SHG Post author

            Forget the slug. You need to apologize for writing “keep pushing,” as if that needed to be said or that’s not what we’ve been doing forever (and before you got here).

  3. GregB

    Have the jurors given any comment about how they decided? Maybe they bought into the liar’s defense, that she could not have known the horrible outcome, and ignored the fact that had nothing to do with her culpability for lying.

    “Sob sob about pour Bou Bou, but I was only trying to rid the world of EVIL!” A women would be able to play this gender card pretty easily I think.

  4. Patrick Maupin

    “There’s a direct causation.”

    That’s all well and good, but incredibly dry — just going through the motions. Where’s the emotive “This was anyfamily, on anystreet, USA. It could have been you. We need to insure this woman’s lies can never hurt again.” that you would have seen if it was someone the DA didn’t like? Where’s the digging through past behavior looking for things she did in the third grade and then leaking them to the press? Or at least evidence that she’d lied before?

    None of that. It’s all “She lied and a bad thing happened.” which more often than not appears to evoke the “There but for the grace of God go I.” response. Almost like that was the desired outcome.

  5. albeed

    “A Habersham County grand jury … found that the investigation that led to the raid was “hurried” and “sloppy,””

    “Federal prosecutors had said Autry, ….
    – knew the informant she relied on didn’t buy drugs from anyone inside the house,
    – that the informant wasn’t a proven reliable source and
    – Autry didn’t confirm there was heavy traffic coming and going at the house”

    It was also implied that ‘everyone’ does it as part of the defense rationale. “scapegoat and pattern”, etc.

    It is nice to know that for certain members of the citizenry, the Costanza Defense (It is not a lie if you really believe it) works in this country and RICO doesn’t apply.

    I try to avoid saying ‘Good Morning’ to a local Federal Magistrate and an AUSA I know on the off-chance it might rain later that day (providing a material false statement to a federal agent and all that!)

    I’ve seen the double face-palm of Jean Luc, but would settle for a single from Womble or RGK.

  6. losingtrader

    Jesus, I guess the maxim “all you have to do is mention children or terrorism and you’ll get a conviction” has been disproven.
    Well, back to my job reading more Maxim magazines at 7-11.

  7. John Barleycorn

    “Magistrate Judge James Butterworth testified during the trial that he wouldn’t have authorized the warrant if he had known the real details of the case.”

    This would have been an interesting cross examination to witness.

    Perhaps James will lobby for a few new courthouse rules?

    1) All warrant proceedings before his court shall now be recorded and video taped for safe keeping.

    2) The signing judge has to ask at least one question before signing a warrant and “How are your kids doing in school this year?” does not qualify.

    3)All judges have to take the yet to be writren training seminar Warrants and You: Your Responsibilities Before Handing Out the Candy To Cops.

  8. JT

    Forgive me (or not) for being contrarian, but does this instance really disprove Ken Womble’s accountability argument? Could there be regional (Georgia vs the Northeast) and federal prosecutorial incompetence (see Henry Glover, New Orleans, 2005) issues that are not present should prosecutors truly decide to punish police perjury?

    Consider Marcus Jeter, assaulted by Bloomfield police officers on the Garden State Parkway in 2012, where the officers committed official misconduct, conspired to commit official misconduct, tampered with public records, and gave false swearing; charges Essex County levied against Sean Courter and Orlando Trinidad before indicting the two criminal cops and convicting them last month. Both now face a mandatory minimum sentence of five years (steep punishment for police prosecutions one might think).

    1. SHG Post author

      Of course it doesn’t disprove Ken’s position. One instance never proves, nor disproves anything, and Ken’s argument remains as valid as before. But it does show that even an approach as sound as Ken’s will face substantial difficulty under the best of circumstances, which is pretty damn shocking.

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