phr
Bluelighter
Victims of the Drug War Are Forced to Resort to Bizarre Legal Defenses
Kevin Carey
AlterNet
8.15.08
On November 16, 2005, Willie "Bo" Mitchell and three co-defendants -- Shelton "Little Rock" Harris, Shelly "Wayne" Martin, and Shawn Earl Gardner -- appeared for a hearing in the modern federal courthouse in downtown Baltimore, Maryland. The four African American men were facing federal charges of racketeering, weapons possession, drug dealing, and five counts of first-degree murder. For nearly two years the prosecutors had been methodically building their case, with the aim of putting the defendants to death. In Baltimore, which has a murder rate eight times higher than that of New York City, such cases are depressingly commonplace.
A few minutes after 10 a.m., United States District Court Judge Andre M. Davis took his seat and began his introductory remarks. Suddenly, the leader of the defendants, Willie Mitchell, a short, unremarkable looking twenty-eight-yearold with close-cropped hair, leapt from his chair, grabbed a microphone, and launched into a bizarre soliloquy.
"I am not a defendant," Mitchell declared. "I do not have attorneys." The court "lacks territorial jurisdiction over me," he argued, to the amazement of his lawyers. To support these contentions, he cited decades-old acts of Congress involving the abandonment of the gold standard and the creation of the Federal Reserve. Judge Davis, a Baltimore-born African American in his late fifties, tried to interrupt. "I object," Mitchell repeated robotically. Shelly Martin and Shelton Harris followed Mitchell to the microphone, giving the same speech verbatim. Their attorneys tried to intervene, but when Harris's lawyer leaned over to speak to him, Harris shoved him away.
Judge Davis ordered the three defendants to be removed from the court, and turned to Gardner, who had, until then, remained quiet. But Gardner, too, intoned the same strange speech. "I am Shawn Earl Gardner, live man, flesh and blood," he proclaimed. Every time the judge referred to him as "the defendant" or "Mr. Gardner," Gardner automatically interrupted: "My name is Shawn Earl Gardner, sir." Davis tried to explain to Gardner that his behavior was putting his chances of acquittal or leniency at risk. "Don't throw your life away," Davis pleaded. But Gardner wouldn't stop. Judge Davis concluded the hearing, determined to find out what was going on.
As it turned out, he wasn't alone. In the previous year, nearly twenty defendants in other Baltimore cases had begun adopting what lawyers in the federal courthouse came to call "the flesh-and-blood defense." The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government's side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial. The defendants also believed that a legal distinction could be drawn between their name as written on their indictment and their true identity as a "flesh and blood man."
Judge Davis and his law clerk pored over the case files, which led them to a series of strange Web sites. The fleshand- blood defense, they discovered, came from a place far from Baltimore, from people as different from Willie Mitchell as people could possibly be. Its antecedents stretched back decades, involving religious zealots, gun nuts, tax protestors, and violent separatists driven by theories that had fueled delusions of Aryan supremacy and race war in gun-loaded compounds in the wilds of Montana and Idaho. Although Mitchell and his peers didn't know it, they were inheriting the intellectual legacy of white supremacists who believe that America was irrevocably broken when the 14th Amendment provided equal rights to former slaves. It was the ideology that inspired the Oklahoma City bombing, the biggest act of domestic terrorism in the nation's history, and now, a decade later, it had somehow sprouted in the crime-ridden ghettos of Baltimore.
The series of events that led to the prosecution of Willie Mitchell et al are as convoluted, tragic and intermittently absurd as an episode of HBO's acclaimed Baltimore crime drama, The Wire. Mitchell and company came of age on the streets of West Baltimore, a few miles and a world away from the rejuvenated inner harbor and the tourist attractions near the federal courthouse. According to prosecutors, the group began selling drugs together as teenagers in the mid-1990s, driving up I-95 to New York City, buying half kilos of cocaine in upper Manhattan and cooking it into crack to sell back home. They added heroin to their repertoire a few years later, as well as robbing and killing other drug dealers. By 2002, they were firmly established in what passes as normal enterprise in a hollowed-out economy like Baltimore, where the drug trade often provides more opportunity than legitimate work and the bedrock institutions of family and school have crumbled. They had children out of wedlock with multiple women. They were occasionally arrested, although they never served much time. It was an insular culture where a ruthless prohibition against "snitching" to the police was often more powerful than any law. Even as cities like New York saw the murder rate decline dramatically, drug killings in Baltimore continued at a steady clip.
According to the indictment, the end began on February 18, 2002, in a downtown Baltimore nightclub called Hammerjacks, where Mitchell got into a dispute and stabbed a fellow drug dealer in the back, seriously wounding him. If Mitchell had hoped to get away with this attempted murder, he was swiftly and brutally set straight by the drug dealer's associates. When police on patrol found Mitchell later that evening, he was on a sidewalk with several men jumping on his head. Mitchell survived the assault, but he remained in serious trouble. The police had issued a warrant for his arrest; more ominously, his enemies had placed a $10,000 contract on his head.
Mitchell probably didn't know exactly what his enemies had in mind, but he was seasoned enough to realize that they wanted him killed. Ten days after the club incident, prosecutors allege, he made a phone call to an associate of the men who had beaten him up. The associate was a drug dealer named Oliver "Woody" McCaffity. Mitchell proposed that the two men meet that evening for a drug deal.
Neither man came to the meeting alone. Mitchell brought a friend, Shelton Harris. McCaffity brought his sometime girlfriend, Lisa Brown. Brown was a pastor's daughter, a computer systems analyst and mother of three. Her parents told reporters that she had broken up with McCaffity after learning of his involvement with drugs. But when he called and invited her to the movies, she decided to go along.
The two parties drove to the Park Heights section of Northwest Baltimore. It was a quick meeting. Mitchell and Harris climbed into the backseat of McCaffity's Infiniti Q-45. Then they shot McCaffity through the head and fired through Brown's raised right hand into her left temple, where police later found a .357 caliber bullet. The bodies of McCaffity and Brown were left in the car, which rolled downhill and rammed into a nearby tree at the dead-end of the street. Police found it two hours later. A palm print on the car window was later matched to Harris, and McCaffity's cell phone records revealed calls that night to Mitchell's phone. Mitchell, suspecting that McCaffity's associates were going to try to kill him, had apparently decided to kill first. The murder would probably not have attracted much attention, except for the fact that McCaffity's Infiniti was owned by Hasim Rahman, the recently dethroned heavyweight boxing champion of the world. McCaffity was a friend and business associate of Rahman, causing the ex-champ to quickly call a press conference denying any involvement in the crimes. (Police have never alleged otherwise.)
If the killing of McCaffity and Brown had been a successful preemptive strike, Mitchell was also prepared to kill for more mundane reasons. On March 24, a few weeks after the Mc- Caffity murder, Mitchell allegedly called a former high school classmate named Darryl Wyche and offered to buy some heroin and cocaine from him. Darryl, excited by the prospect of a big sale, agreed. The two made plans to meet in a nearby industrial park around midnight.
Again, neither party came alone. Wyche brought his younger brother Tony, who had reluctantly agreed to drive. Mitchell brought Harris again, as well as two more friends: Shelly Martin and Shawn Gardner.
The Wyche brothers opened the back door of their Honda to let Mitchell and his men into the back seat. Then each received a bullet in the side of the head. The next morning the police found the bodies, seat belts still on. (Mitchell appears to have seen Wyche as an easy source of drugs and cash.)
But Mitchell's luck was about to end. When Baltimore homicide detectives found the bodies of the Wyche brothers, they assumed they had come across another hard-to-solve drug killing. Then they received an unexpected phone call. It was from Darryl Wyche's mother-in-law, who reported finding a strange message on her phone. Recorded at 12:43 a.m., the message was four and a half minutes of a group of men with names like "Wayne" and "Shorty" saying things like "Bup-bup-bup-bup-bup, yo, they both fucked." The call had come from the cellphone of Darryl Wyche.
Wyche's family and the police soon figured out what had happened: One of the murderers had stolen Darryl Wyche's phone and forgotten to turn it off. While the killers were driving away, one of them had accidentally pressed the phone's speed dial button, calling Darryl's mother-in-law and producing a most unusual piece of evidence: a voicemail confession. With considerable understatement, a lieutenant in the city homicide unit reflected on his good fortune to the Baltimore Sun. "We got lucky," he said. Willie Mitchell and Shelly Martin were soon rounded up and put in jail.
What would become the fifth and final murder charge in the case of Willie Mitchell and his cohorts took place two months later. This time, only Mitchell's friend Shawn Gardner was directly involved. It began with a man named Darius Spence, who had found out that his wife, Tanya, was cheating on him with a local drug dealer everyone called "Momma."
Spence decided to have Momma beaten up severely. To accomplish this, he negotiated with another drug dealer named Willie Montgomery. Would Montgomery be willing to beat up Momma in exchange for money? But Montgomery had another proposition altogether. Beating Momma up didn't make sense, Montgomery argued, because then Momma would undoubtedly try to kill Montgomery. It was better just to kill Momma outright, and for five thousand dollars, Montgomery would be glad to do the job. Spence said he'd think it over.
Unfortunately for Darius Spence, Montgomery wasn't interested in waiting around for an answer. Instead, sensing opportunity, Montgomery decided to tell Momma about the hit. If I turn down the deal, Montgomery explained, then Spence will probably just hire someone else to kill you. Therefore, Montgomery reasoned, you should hire me to kill Spence first. Momma was persuaded. (As Montgomery later explained to the prosecutors, "I guess he like that idea better than Darius Spence's idea.")
To execute the hit on Spence, Montgomery recruited two associates, one of whom was Shawn Gardner. For the next two months, the three men staked out Spence's apartment. The plan was for Shawn Gardner and his associate to invade from the basement and carry out the killing, and then run to a nearby getaway car, which was to be driven by Montgomery. Special care was to be taken not to harm Tanya, and they would cover her eyes with duct tape to prevent her from identifying them. Still, Montgomery warned Momma that he couldn't guarantee Tanya's safety. "If it's up to me, she won't be hurt," Montgomery told Momma, "but some things could go wrong." Momma's reply was to the point: "Do what you do."
On June 7, 2002, the three men drove to the Spence apartment, a worn red brick building at the end of a cul-de-sac a few miles from Baltimore city. But the hit didn't go as planned. Darius Spence wasn't in the apartment, and they didn't manage to blindfold Tanya. As children played outside the Spence apartment, Tanya burst through the kitchen door on the third floor, screaming, "No! No!" Lifting one leg over the balcony, she tried to climb down to the floor below but lost her grip and fell fifteen feet to the ground, landing a few feet from the children. Gasping for breath, she motioned for them to run away before crawling under the first floor balcony. Moments later, the two killers emerged from the Spence apartment, ran down the steps and stopped a few feet from Tanya, now lying in the fetal position in the dirt and begging for her life. One pulled out a large caliber revolver and fired two shots into Tanya's chest as the children watched. Then both men ran away.
Unfortunately for the killers, Montgomery wasn't where they thought he'd be. Somehow the meeting place had gotten confused, and the getaway failed. Police quickly apprehended Shawn Gardner and his associate. Eventually, the law caught up to Montgomery, too.
Gardner was tried, convicted, and sentenced in state court to life in prison without the possibility of parole for the murder of Tanya Spence. Meanwhile, Willie Mitchell and Shelly Martin were charged by the state with the Wyche brothers' killings and sat in prison for the next year and a half as police and prosecutors assembled their case.
Then, on January 22, 2004 -- nearly two years after the first four murders -- the word came down from the office of U.S. Attorney Thomas DiBiagio: the Willie Mitchell case was going federal, and the government was seeking the death penalty. The Justice Department, DiBiagio explained, was going after "individuals responsible for making life hell in Baltimore."
For Mitchell and company, this was bad news. Instead of jurors selected from the city pool, Mitchell would likely be judged by an all-white panel of citizens from places like Maryland's westernmost rural counties or the far reaches of the Eastern Shore. He would face better-funded prosecutors, and was far more likely to get the death penalty. Maryland has only executed five people in the last thirty years, but in 2005, then-Attorney General John Ashcroft was aggressively seeking death sentences. In fact, the Justice Department was even retrying cases in order to win death penalties for crimes like the Spence murder, for which Shawn Gardner was already serving life without parole.
DiBiagio's office also added a raft of conspiracy charges to the indictment, filed under the federal Racketeering Influenced and Corrupt Organizations (RICO) Act. By alleging that the defendants were part of an organized conspiracy -- the so-called "Willie Mitchell organization" -- prosecutors could hold all four defendants responsible for any of the crimes the others had committed. That's why Shelton Harris, who wasn't originally arrested for the Wyche or the McCaffity and Brown murders, was pulled off the street and charged with the full slate of crimes. It's also why Mitchell and Harris were charged with the Spence murder, although they were already in jail when Shawn Gardner committed it. RICO is normally applied to members of the mafia and organized crime, and its use sent a clear message: the government was coming at Mitchell and company with everything it had.
The prosecutors bolstered the conspiracy argument by noting that, unlike most Baltimore drug dealers, Mitchell and company had incorporated a legal entity for which they all worked and allegedly funneled proceeds of their drug business into: "Shake Down Entertainment, Ltd." The group promoted rap CDs and concerts through the company, which even had its own record label, "Shystyville." Soon, Shystyville CDs with titles like "Pure Shit" became evidence of not just the conspiracy but the crimes themselves, with prosecutors entering into the record lyrics like these:
I watch ya brains fly all over on the bitch next to you
Homeboy it's up to you I could put this pup to you
Then to pumpin' you up like a innertube
Send shots that'll pump up the end of you
Leave you all fat and bloated you know I keep
the Mac loaded then I like ta clack rollin'
That's why Bo and Weez on lock now and every day on lock down
Niggas getting shot down for runnin' they mouth clown
Tell me how it feels with a gun in ya mouth now
Prosecutors alleged that the "bitch next to you" was Lisa Brown, who was sitting beside Oliver McCaffity when he was shot through the head, that a "pup" is slang for the largecaliber revolver used in the killing, that the "Bo" on "lock now" was the imprisoned Willie "Bo" Mitchell, and that the reference to "Niggas getting shot for runnin' they mouth" amounted to witness intimidation. Faced with the prospect of an all-white jury hearing this music in the courtroom, the defense lawyers objected on the grounds that lots of songs have lyrics that "proudly refer to violent retaliation," offering by way of example country star Toby Keith's "Courtesy of the Red, White and Blue (The Angry American)."
Nearly two years passed. The wheels of justice were turning, slowly but surely. Then came the memorable hearing in which the defendants debuted the flesh-and-blood defense. After that, everything changed.
A month after the hearing, Judge Davis took the unusual step of issuing a written opinion denying all of the defendant's "unusual -- if not bizarre" arguments. "Perhaps they would even be humorous," Davis wrote, "were the stakes not so high It is truly ironic that four African- American defendants here apparently rely on an ideology derived from a famously discredited notion: the illegitimacy of the Fourteenth Amendment." One can understand his incredulity that four Baltimore drug dealers might invoke a racist argument that dates back to the nineteenth century. But as it turns out, that's when the seeds of the flesh-and-blood defense were sown.
In 1878, southern Democrats pushed legislation through Congress limiting the ability of the federal government to marshal troops on U.S. soil. Known as Posse Comitatus, (Latin for "power of the county") the law's authors hoped to constrain the government's ability to protect black southerners from violence and discrimination. The act symbolically marked the end of Reconstruction and the beginning of Jim Crow.
For the next eight decades, black Americans lived under the yoke of institutional racism. But by the late 1950s, the civil rights movement was growing in strength. In 1957, President Eisenhower sent 1,200 troops from the 101st Airborne Division to Little Rock, Arkansas, so that nine black students could safely enter a previously all-white high school. The landmark Civil Rights Act followed in 1964.
These developments horrified one William Gale, a World War II veteran, insurance salesman, self-styled minister of racist Christian Identity theology, and raving anti-Semite. In 1971, he launched a movement whose impact would reverberate through the radical fringes of American society for decades to come. He called it Posse Comitatus, named for the 1878 law he believed Eisenhower had violated by sending the troops to Little Rock. In a series of tapes and self-published pamphlets, Gale explained that county sheriffs were the supreme legal law enforcement officers in the land, and that county residents had the right to form a posse to enforce the Constitution -- however they, as "sovereign citizens," chose to interpret it. Public officials who interfered, instructed Gale, should be "hung by the neck" at high noon.
Kevin Carey
AlterNet
8.15.08
On November 16, 2005, Willie "Bo" Mitchell and three co-defendants -- Shelton "Little Rock" Harris, Shelly "Wayne" Martin, and Shawn Earl Gardner -- appeared for a hearing in the modern federal courthouse in downtown Baltimore, Maryland. The four African American men were facing federal charges of racketeering, weapons possession, drug dealing, and five counts of first-degree murder. For nearly two years the prosecutors had been methodically building their case, with the aim of putting the defendants to death. In Baltimore, which has a murder rate eight times higher than that of New York City, such cases are depressingly commonplace.
A few minutes after 10 a.m., United States District Court Judge Andre M. Davis took his seat and began his introductory remarks. Suddenly, the leader of the defendants, Willie Mitchell, a short, unremarkable looking twenty-eight-yearold with close-cropped hair, leapt from his chair, grabbed a microphone, and launched into a bizarre soliloquy.
"I am not a defendant," Mitchell declared. "I do not have attorneys." The court "lacks territorial jurisdiction over me," he argued, to the amazement of his lawyers. To support these contentions, he cited decades-old acts of Congress involving the abandonment of the gold standard and the creation of the Federal Reserve. Judge Davis, a Baltimore-born African American in his late fifties, tried to interrupt. "I object," Mitchell repeated robotically. Shelly Martin and Shelton Harris followed Mitchell to the microphone, giving the same speech verbatim. Their attorneys tried to intervene, but when Harris's lawyer leaned over to speak to him, Harris shoved him away.
Judge Davis ordered the three defendants to be removed from the court, and turned to Gardner, who had, until then, remained quiet. But Gardner, too, intoned the same strange speech. "I am Shawn Earl Gardner, live man, flesh and blood," he proclaimed. Every time the judge referred to him as "the defendant" or "Mr. Gardner," Gardner automatically interrupted: "My name is Shawn Earl Gardner, sir." Davis tried to explain to Gardner that his behavior was putting his chances of acquittal or leniency at risk. "Don't throw your life away," Davis pleaded. But Gardner wouldn't stop. Judge Davis concluded the hearing, determined to find out what was going on.
As it turned out, he wasn't alone. In the previous year, nearly twenty defendants in other Baltimore cases had begun adopting what lawyers in the federal courthouse came to call "the flesh-and-blood defense." The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government's side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial. The defendants also believed that a legal distinction could be drawn between their name as written on their indictment and their true identity as a "flesh and blood man."
Judge Davis and his law clerk pored over the case files, which led them to a series of strange Web sites. The fleshand- blood defense, they discovered, came from a place far from Baltimore, from people as different from Willie Mitchell as people could possibly be. Its antecedents stretched back decades, involving religious zealots, gun nuts, tax protestors, and violent separatists driven by theories that had fueled delusions of Aryan supremacy and race war in gun-loaded compounds in the wilds of Montana and Idaho. Although Mitchell and his peers didn't know it, they were inheriting the intellectual legacy of white supremacists who believe that America was irrevocably broken when the 14th Amendment provided equal rights to former slaves. It was the ideology that inspired the Oklahoma City bombing, the biggest act of domestic terrorism in the nation's history, and now, a decade later, it had somehow sprouted in the crime-ridden ghettos of Baltimore.
The series of events that led to the prosecution of Willie Mitchell et al are as convoluted, tragic and intermittently absurd as an episode of HBO's acclaimed Baltimore crime drama, The Wire. Mitchell and company came of age on the streets of West Baltimore, a few miles and a world away from the rejuvenated inner harbor and the tourist attractions near the federal courthouse. According to prosecutors, the group began selling drugs together as teenagers in the mid-1990s, driving up I-95 to New York City, buying half kilos of cocaine in upper Manhattan and cooking it into crack to sell back home. They added heroin to their repertoire a few years later, as well as robbing and killing other drug dealers. By 2002, they were firmly established in what passes as normal enterprise in a hollowed-out economy like Baltimore, where the drug trade often provides more opportunity than legitimate work and the bedrock institutions of family and school have crumbled. They had children out of wedlock with multiple women. They were occasionally arrested, although they never served much time. It was an insular culture where a ruthless prohibition against "snitching" to the police was often more powerful than any law. Even as cities like New York saw the murder rate decline dramatically, drug killings in Baltimore continued at a steady clip.
According to the indictment, the end began on February 18, 2002, in a downtown Baltimore nightclub called Hammerjacks, where Mitchell got into a dispute and stabbed a fellow drug dealer in the back, seriously wounding him. If Mitchell had hoped to get away with this attempted murder, he was swiftly and brutally set straight by the drug dealer's associates. When police on patrol found Mitchell later that evening, he was on a sidewalk with several men jumping on his head. Mitchell survived the assault, but he remained in serious trouble. The police had issued a warrant for his arrest; more ominously, his enemies had placed a $10,000 contract on his head.
Mitchell probably didn't know exactly what his enemies had in mind, but he was seasoned enough to realize that they wanted him killed. Ten days after the club incident, prosecutors allege, he made a phone call to an associate of the men who had beaten him up. The associate was a drug dealer named Oliver "Woody" McCaffity. Mitchell proposed that the two men meet that evening for a drug deal.
Neither man came to the meeting alone. Mitchell brought a friend, Shelton Harris. McCaffity brought his sometime girlfriend, Lisa Brown. Brown was a pastor's daughter, a computer systems analyst and mother of three. Her parents told reporters that she had broken up with McCaffity after learning of his involvement with drugs. But when he called and invited her to the movies, she decided to go along.
The two parties drove to the Park Heights section of Northwest Baltimore. It was a quick meeting. Mitchell and Harris climbed into the backseat of McCaffity's Infiniti Q-45. Then they shot McCaffity through the head and fired through Brown's raised right hand into her left temple, where police later found a .357 caliber bullet. The bodies of McCaffity and Brown were left in the car, which rolled downhill and rammed into a nearby tree at the dead-end of the street. Police found it two hours later. A palm print on the car window was later matched to Harris, and McCaffity's cell phone records revealed calls that night to Mitchell's phone. Mitchell, suspecting that McCaffity's associates were going to try to kill him, had apparently decided to kill first. The murder would probably not have attracted much attention, except for the fact that McCaffity's Infiniti was owned by Hasim Rahman, the recently dethroned heavyweight boxing champion of the world. McCaffity was a friend and business associate of Rahman, causing the ex-champ to quickly call a press conference denying any involvement in the crimes. (Police have never alleged otherwise.)
If the killing of McCaffity and Brown had been a successful preemptive strike, Mitchell was also prepared to kill for more mundane reasons. On March 24, a few weeks after the Mc- Caffity murder, Mitchell allegedly called a former high school classmate named Darryl Wyche and offered to buy some heroin and cocaine from him. Darryl, excited by the prospect of a big sale, agreed. The two made plans to meet in a nearby industrial park around midnight.
Again, neither party came alone. Wyche brought his younger brother Tony, who had reluctantly agreed to drive. Mitchell brought Harris again, as well as two more friends: Shelly Martin and Shawn Gardner.
The Wyche brothers opened the back door of their Honda to let Mitchell and his men into the back seat. Then each received a bullet in the side of the head. The next morning the police found the bodies, seat belts still on. (Mitchell appears to have seen Wyche as an easy source of drugs and cash.)
But Mitchell's luck was about to end. When Baltimore homicide detectives found the bodies of the Wyche brothers, they assumed they had come across another hard-to-solve drug killing. Then they received an unexpected phone call. It was from Darryl Wyche's mother-in-law, who reported finding a strange message on her phone. Recorded at 12:43 a.m., the message was four and a half minutes of a group of men with names like "Wayne" and "Shorty" saying things like "Bup-bup-bup-bup-bup, yo, they both fucked." The call had come from the cellphone of Darryl Wyche.
Wyche's family and the police soon figured out what had happened: One of the murderers had stolen Darryl Wyche's phone and forgotten to turn it off. While the killers were driving away, one of them had accidentally pressed the phone's speed dial button, calling Darryl's mother-in-law and producing a most unusual piece of evidence: a voicemail confession. With considerable understatement, a lieutenant in the city homicide unit reflected on his good fortune to the Baltimore Sun. "We got lucky," he said. Willie Mitchell and Shelly Martin were soon rounded up and put in jail.
What would become the fifth and final murder charge in the case of Willie Mitchell and his cohorts took place two months later. This time, only Mitchell's friend Shawn Gardner was directly involved. It began with a man named Darius Spence, who had found out that his wife, Tanya, was cheating on him with a local drug dealer everyone called "Momma."
Spence decided to have Momma beaten up severely. To accomplish this, he negotiated with another drug dealer named Willie Montgomery. Would Montgomery be willing to beat up Momma in exchange for money? But Montgomery had another proposition altogether. Beating Momma up didn't make sense, Montgomery argued, because then Momma would undoubtedly try to kill Montgomery. It was better just to kill Momma outright, and for five thousand dollars, Montgomery would be glad to do the job. Spence said he'd think it over.
Unfortunately for Darius Spence, Montgomery wasn't interested in waiting around for an answer. Instead, sensing opportunity, Montgomery decided to tell Momma about the hit. If I turn down the deal, Montgomery explained, then Spence will probably just hire someone else to kill you. Therefore, Montgomery reasoned, you should hire me to kill Spence first. Momma was persuaded. (As Montgomery later explained to the prosecutors, "I guess he like that idea better than Darius Spence's idea.")
To execute the hit on Spence, Montgomery recruited two associates, one of whom was Shawn Gardner. For the next two months, the three men staked out Spence's apartment. The plan was for Shawn Gardner and his associate to invade from the basement and carry out the killing, and then run to a nearby getaway car, which was to be driven by Montgomery. Special care was to be taken not to harm Tanya, and they would cover her eyes with duct tape to prevent her from identifying them. Still, Montgomery warned Momma that he couldn't guarantee Tanya's safety. "If it's up to me, she won't be hurt," Montgomery told Momma, "but some things could go wrong." Momma's reply was to the point: "Do what you do."
On June 7, 2002, the three men drove to the Spence apartment, a worn red brick building at the end of a cul-de-sac a few miles from Baltimore city. But the hit didn't go as planned. Darius Spence wasn't in the apartment, and they didn't manage to blindfold Tanya. As children played outside the Spence apartment, Tanya burst through the kitchen door on the third floor, screaming, "No! No!" Lifting one leg over the balcony, she tried to climb down to the floor below but lost her grip and fell fifteen feet to the ground, landing a few feet from the children. Gasping for breath, she motioned for them to run away before crawling under the first floor balcony. Moments later, the two killers emerged from the Spence apartment, ran down the steps and stopped a few feet from Tanya, now lying in the fetal position in the dirt and begging for her life. One pulled out a large caliber revolver and fired two shots into Tanya's chest as the children watched. Then both men ran away.
Unfortunately for the killers, Montgomery wasn't where they thought he'd be. Somehow the meeting place had gotten confused, and the getaway failed. Police quickly apprehended Shawn Gardner and his associate. Eventually, the law caught up to Montgomery, too.
Gardner was tried, convicted, and sentenced in state court to life in prison without the possibility of parole for the murder of Tanya Spence. Meanwhile, Willie Mitchell and Shelly Martin were charged by the state with the Wyche brothers' killings and sat in prison for the next year and a half as police and prosecutors assembled their case.
Then, on January 22, 2004 -- nearly two years after the first four murders -- the word came down from the office of U.S. Attorney Thomas DiBiagio: the Willie Mitchell case was going federal, and the government was seeking the death penalty. The Justice Department, DiBiagio explained, was going after "individuals responsible for making life hell in Baltimore."
For Mitchell and company, this was bad news. Instead of jurors selected from the city pool, Mitchell would likely be judged by an all-white panel of citizens from places like Maryland's westernmost rural counties or the far reaches of the Eastern Shore. He would face better-funded prosecutors, and was far more likely to get the death penalty. Maryland has only executed five people in the last thirty years, but in 2005, then-Attorney General John Ashcroft was aggressively seeking death sentences. In fact, the Justice Department was even retrying cases in order to win death penalties for crimes like the Spence murder, for which Shawn Gardner was already serving life without parole.
DiBiagio's office also added a raft of conspiracy charges to the indictment, filed under the federal Racketeering Influenced and Corrupt Organizations (RICO) Act. By alleging that the defendants were part of an organized conspiracy -- the so-called "Willie Mitchell organization" -- prosecutors could hold all four defendants responsible for any of the crimes the others had committed. That's why Shelton Harris, who wasn't originally arrested for the Wyche or the McCaffity and Brown murders, was pulled off the street and charged with the full slate of crimes. It's also why Mitchell and Harris were charged with the Spence murder, although they were already in jail when Shawn Gardner committed it. RICO is normally applied to members of the mafia and organized crime, and its use sent a clear message: the government was coming at Mitchell and company with everything it had.
The prosecutors bolstered the conspiracy argument by noting that, unlike most Baltimore drug dealers, Mitchell and company had incorporated a legal entity for which they all worked and allegedly funneled proceeds of their drug business into: "Shake Down Entertainment, Ltd." The group promoted rap CDs and concerts through the company, which even had its own record label, "Shystyville." Soon, Shystyville CDs with titles like "Pure Shit" became evidence of not just the conspiracy but the crimes themselves, with prosecutors entering into the record lyrics like these:
I watch ya brains fly all over on the bitch next to you
Homeboy it's up to you I could put this pup to you
Then to pumpin' you up like a innertube
Send shots that'll pump up the end of you
Leave you all fat and bloated you know I keep
the Mac loaded then I like ta clack rollin'
That's why Bo and Weez on lock now and every day on lock down
Niggas getting shot down for runnin' they mouth clown
Tell me how it feels with a gun in ya mouth now
Prosecutors alleged that the "bitch next to you" was Lisa Brown, who was sitting beside Oliver McCaffity when he was shot through the head, that a "pup" is slang for the largecaliber revolver used in the killing, that the "Bo" on "lock now" was the imprisoned Willie "Bo" Mitchell, and that the reference to "Niggas getting shot for runnin' they mouth" amounted to witness intimidation. Faced with the prospect of an all-white jury hearing this music in the courtroom, the defense lawyers objected on the grounds that lots of songs have lyrics that "proudly refer to violent retaliation," offering by way of example country star Toby Keith's "Courtesy of the Red, White and Blue (The Angry American)."
Nearly two years passed. The wheels of justice were turning, slowly but surely. Then came the memorable hearing in which the defendants debuted the flesh-and-blood defense. After that, everything changed.
A month after the hearing, Judge Davis took the unusual step of issuing a written opinion denying all of the defendant's "unusual -- if not bizarre" arguments. "Perhaps they would even be humorous," Davis wrote, "were the stakes not so high It is truly ironic that four African- American defendants here apparently rely on an ideology derived from a famously discredited notion: the illegitimacy of the Fourteenth Amendment." One can understand his incredulity that four Baltimore drug dealers might invoke a racist argument that dates back to the nineteenth century. But as it turns out, that's when the seeds of the flesh-and-blood defense were sown.
In 1878, southern Democrats pushed legislation through Congress limiting the ability of the federal government to marshal troops on U.S. soil. Known as Posse Comitatus, (Latin for "power of the county") the law's authors hoped to constrain the government's ability to protect black southerners from violence and discrimination. The act symbolically marked the end of Reconstruction and the beginning of Jim Crow.
For the next eight decades, black Americans lived under the yoke of institutional racism. But by the late 1950s, the civil rights movement was growing in strength. In 1957, President Eisenhower sent 1,200 troops from the 101st Airborne Division to Little Rock, Arkansas, so that nine black students could safely enter a previously all-white high school. The landmark Civil Rights Act followed in 1964.
These developments horrified one William Gale, a World War II veteran, insurance salesman, self-styled minister of racist Christian Identity theology, and raving anti-Semite. In 1971, he launched a movement whose impact would reverberate through the radical fringes of American society for decades to come. He called it Posse Comitatus, named for the 1878 law he believed Eisenhower had violated by sending the troops to Little Rock. In a series of tapes and self-published pamphlets, Gale explained that county sheriffs were the supreme legal law enforcement officers in the land, and that county residents had the right to form a posse to enforce the Constitution -- however they, as "sovereign citizens," chose to interpret it. Public officials who interfered, instructed Gale, should be "hung by the neck" at high noon.
