Friday, January 20, 2017

The Slow-Motion State Murder of Michael Whiteley



 
The "Black Widow of Bonneville County": Silvia Canido, seen here in Bolivia.


Facing the prospect of life in prison – and the plausible
threat of execution – Idaho Falls resident Michael Whiteley had every conceivable reason to plead guilty to a charge of second-degree kidnapping, save one: He didn’t commit the crime. 

“I have to plead not guilty, Your Honor,” Whiteley told Bonneville County District Judge Marvin Smith just minutes after being offered a plea bargain through which he would have avoided prison altogether. “I had originally intended to plead the other way, but now that I sit here and run it through my heart and my mind, I don’t feel, your honor, that it is right to lie.”

A few weeks earlier, Whiteley had been charged with first-degree kidnapping and rape, and heard a Bonneville County deputy prosecutor inform the judge that “although we are not seeking the death penalty in this case, kidnapping is also punishable by death – first degree kidnapping.” Judge Smith himself had agreed that “This is potentially a death penalty case,” owing to the allegation that Whiteley had committed serious harm to the supposed victim – his ex-wife, known at the time as Silvia Canido.

In the lead-up to Michael's May 1991 trial, the Bonneville County Prosecutor's Office
was disqualified from the case because of the misconduct of the assigned prosecutor, John Stosich. Deputy Idaho Attorney General Jack Haycock, who was given the case, offered Michael a deal in which he would plead guilty to one count of second-degree kidnapping, and the court would retain jurisdiction while he spent four months undergoing rehabilitation at the Cottonwood drug and alcohol treatment facility. 
 
Silvia and Michael's wedding portrait.

If Whiteley had been burdened with the guilty knowledge that he had committed the hideous crimes of which he stood accused, he would have eagerly accepted that deal. The most urgent priority for a guilty man in such circumstances, after all, is to avoid punishment – which he could have done by accepting the plea bargain. For a wrongfully accused man in the same situation, the most urgent task is to clear his name. 

In a case that depended entirely on an assessment of the relative credibility of the accuser and the defendant, Whiteley’s choice to confront the charges, rather than avoid them on absurdly generous terms, should have been dispositive evidence of his innocence. Similarly compelling corroboration is offered by the fact that the Idaho AG’s office was willing to offer that deal: If Deputy AG Haycock sincerely believed that Whiteley had kidnapped and raped a woman, and that he had the evidence to prove those accusations, he acted with culpable irresponsibility in making that offer. 

The only direct “evidence” against Whiteley consisted of the uncorroborated, and self-contradictory, story told by the accuser. Canido refused to submit to a medical examination, which means that no physical evidence of rape was ever produced. 

Where is the evidence?

The report filed by Idaho Falls Police Officer who interviewed Canido following Whiteley’s January 16, 1991 arrest, did not contain any mention of a rape accusation: “Don’t ask me,” the officer exclaimed when queried about that astonishing oversight during cross-examination. The officer also claimed to have seen a large bruise on Canido’s inner thigh, but did not photograph the alleged wound – and when asked about it by defense counsel Stevan Thompson could not recall which thigh displayed the alleged lesion. 

At the time of Whiteley’s arrest, he was visiting Canido’s home after returning with her from a trip to southern Utah. He had just endured a severe beating at the hands of Raquel Gonzalez, Canido’s mother, who had attacked him with a baseball bat. When the police arrived, Whiteley was arrested for supposedly violating a protective order that Canido had obtained the previous November – and had asked to be rescinded shortly thereafter.

As a result of either simple incompetence or a very peculiar sense of humor, that protective order specified that it would expire on February 6, 1990 – nearly a year before Whiteley was arrested for violating it. Thus the arrest was invalid. 

Once he had Whiteley in custody, the arresting officer – using the familiar tactics of his disreputable trade – tried to elicit Whiteley’s “cooperation” to “clear up” the matter, without telling him that he was trying to build a case to send him to prison. The officer parried Whiteley’s demand for an attorney by saying that it was “too early” to get one, and that if the hostage were cooperative things would work out much better. He extracted Whiteley’s signature on a Miranda waiver form, and then produced what was called a “voluntary” statement from the hostage. 

Whiteley refused to sign that statement. So the officer forged the hostage’s signature – and then lied about the matter in a pre-trial hearing. Despite being caught in an act of deliberate perjury, and changing his insistent initial testimony after he was confronted with the original document, the officer’s version of events was accepted by Judge Smith, who commended him for his “demeanor” and “credibility.”

The officer who headed the Whiteley investigation was the now-notorious IFPD Sergeant Jared Fuhriman, who used the case to test many of the same tactics that he would later use to engineer the false confession, and wrongful murder conviction, of Christopher Tapp. 

A bizarre relationship





Whiteley and Canido had met the previous August when the vivacious 33-year-old Bolivian immigrant answered his ad for help in cleaning a house. Whiteley had moved to Idaho Falls from Las Vegas amid the break-up of his marriage to his wife of 17 years, Dineen. 

Canido claimed to have fled an abusive husband named Carlos Almanza, to whom she was still legally married. That fact didn’t prevent her from initiating a relationship with Whiteley, talking her way into accompanying him on a trip to visit his foster parents in Salmon, Idaho. 

Her overt displays of physical affection toward Whiteley made his hosts uncomfortable. At one point during the return trip to Idaho Falls, Candido – who was driving – reached over to kiss Whiteley, and while doing so caused a nearly fatal accident. 


Although Canido appeared besotted with Whiteley (“Te amo, Te amo, Te amo, Te amo, Te amo, Te amo, Te amo,  Te amo, Te amo, Te amo, Te amo, Te amo, Te amo, Te amo mucho!” she wrote in a birthday card shortly after the accident), her mother despised him and repeatedly threatened Canido with deportation and the loss of her children unless she broke off the relationship. Under pressure from both her mother and members of the local Mormon congregation she was attending, Canido filed several protective orders against Whiteley – which she violated by persistently calling him and driving past his home. 

On October 20, 1990, Whiteley and Canido were married in Elko, Nevada by Justice of the Peace Jack B. Ames. Canido had filed for dissolution of her marriage from Carlos Almanza, but was still legally married to him. When they returned to Idaho Falls, Michael and Silvia began attending the Idaho Falls Calvary Baptist Church. Given that he had just ended a long marriage, and she had committed what Idaho considered a felony by contracting a bigamous marriage, they were in need of spiritual advice, which Pastor Herb Stoneman was anxious to provide. 

During the course of several conversations, Stoneman testified, Canido “told me … that she was under pressure from her mother and her [Mormon] Bishop to end her relationship with Mike Whiteley…. [She] told me that she was personally beginning to move away from her mother and the LDS Church which had been [dominating] her life…. [S]he was having difficulty handling the pressure from her mother and her Bishop.” 

“Sundown Bail”

The marriage of Michael Whiteley and Silvia Canido lasted twenty-six days. Two days after the November 15 dissolution decree, Canido filed a complaint claiming that she was receiving harassing phone calls from Whiteley’s 14-year-old son, Jay. 

At the time, Whiteley was out of town on a truck driving gig, so he wasn’t around when Canido, in the company of Idaho Falls Police Officer Rick Hansen, visited Jay, pulled a knife, and threatened to kill him. Despite witnessing a violent felony, Officer Hansen didn’t arrest the assailant. Instead he blithely suggested that Whiteley and his mother could take up the matter with the prosecutor’s office. 

Officer Hansen, Canido would later claim, exploited the leverage he gained by declining to file charges against her by manipulating her into having sex with him – which would constitute both kidnapping and rape. 

That Hansen was less that zealous in protecting citizens from violent crime is documented in his own report. The fact that Canido became pregnant sometime in mid-November suggests that her claim to have had sex with him is plausible, but there was at least one other candidate – Keith McCabe, a younger man with whom she had already begun a relationship while she was still married to Whiteley. 

The only evidence that Hansen extorted sex from Canido is the accusation she made in a September 1999 letter in which she also recanted her accusations against Whiteley – who by that time had been in prison for more than eight years. If her unsubstantiated accusations against Whiteley were sufficient to win a conviction – and, if the prosecution had sought it, the death penalty – wouldn’t the same be true of now-retired Idaho Falls Police Officer Rick Hansen? 

When Whiteley returned to Idaho Falls in November 1990, he soon found himself in jail for violating protective orders filed on Canido’s behalf. He was also charged with aggravated assault after Canido – who had just threatened his son with a knife in the presence of a police officer – filed a criminal complaint claiming that she had been the victim in an identical alleged incident to which there were no witnesses. 
 
Ex-prosecutor, and ex-con, Mason.

Shortly before Christmas, he was summoned to the office of Bonneville County Prosecutor Kimball Mason (who would later serve a prison term for trafficking in stolen firearms) and presented with an ultimatum: He could avoid criminal prosecution only if he left Idaho forever. 

This arrangement, which Kimball called “sundown bail,” was never the subject of a court order; it was an extra-judicial act of prosecutorial presumption. Nonetheless, after Whiteley was arrested in January, deputy prosecutor John Stosich lied during a bail hearing by describing it as a court order, trying to get Whiteley to admit to violating a previous court order in an effort to deny him bail. 

When Whiteley’s defense attorney pointed out the deception to the judge, Stosich – displaying high-viscosity dishonesty remarkable even for a prosecutor – claimed that because he and his boss had deceived Whiteley into thinking “sundown bail” was granted by a judge he should be punished for violating a non-existent court order. Judge Smith was receptive to that argument. He also dismissed defense protests that Whiteley’s January 16, 1991 arrest was unlawful because the protective order had expired: What mattered in that case, Smith insisted, was that Officer Furhiman believed that the order was valid, or at least that he claimed to. 

Whiteley was strongly motivated to leave Idaho Falls, and he made arrangements to move back to Nevada. This included a job offer from a bail enforcement firm that had previously employed him. (This is why he was in possession of an inoperable stun gun, which would eventually play an important role in the fanciful narrative concocted by the prosecution during his subsequent trial.) Knowing that it was risky to do so, he returned to Idaho Falls to begin preparations to move his children back to Nevada. This meant that he once again came in contact with Canido – who announced that she was pregnant and demanded that he take her to Salt Lake City for an abortion.

Three trips and a criminal charge

Canido’s initial story was that Whiteley was the child’s father, a claim that doesn’t match up with the timeline. Whiteley would later say that she confided to him that Officer Hansen had impregnated her. Acting in a way that defies rational explanation, Whiteley consented to take her to Utah. 

The couple wound up making three trips in January 1991. The first two were made to procure the death of Canido’s unborn child; she balked the first time, then went through with the procedure on the second. By this time, Canido had convinced Whiteley that she wanted to reconcile, and persuaded him to take her to Las Vegas. That trip ended in Cedar City, Utah, because of inclement weather. Both of them were seen by several people, including a former high school principal who had known Whiteley several years earlier. Several other witnesses saw an unaccompanied Canido while Whiteley was getting gas or tending to other matters, was seen. None of them saw any evidence that she was his prisoner, or that she was desperate to escape a depraved rapist. 

In the couple’s absence, Canido’s mother and several members of the Mormon ward she had attended contacted the police – which led to the arrest on January 16. At some point while Whiteley was in custody for allegedly violating the expired civil protection order, Officer Fuhriman and the Bonneville County Prosecutor’s Office decided to charge him with rape and kidnapping. 

While Whiteley was in jail, Canido made several attempts to contact him. On the morning following his arrest, Whiteley called Canido – unaware that deputy prosecutor Stositch was in her living room with a tape recorder, and was prompting her to ask questions intended to solicit self-incriminating responses. 
 
Judge Smith.

All Whiteley heard on his end were repeated demands for an apology – which he was willing to give if Canido dropped the charges and left him alone. What he didn’t hear was Stosich whispering to her, “Ask him if he apologizes for the rape.”

By this time, Stosich and his boss had been notified that Whiteley was represented by a public defender, which meant that they were breaking the law by using Canido as an interrogator. Despite his habitual deference to the prosecution, Judge Smith ruled that Sotisch had recruited Canido as a “state agent” through his ventriloquist routine, and excluded the tape recording containing the fabricated pseudo-confession. He also disqualified the Bonneville County Prosecutor’s Office for its misconduct. 

Without corroborating testimony from eyewitnesses, physical evidence from a rape kit, or a confession from Whiteley, the prosecution’s case rested entirely on Canido’s accusations – which she expanded and redefined with practically every sentence she uttered. At one point she startled the prosecutor, Idaho deputy Attorney General Haycock, by claiming that Whiteley had “forced” her to marry him, and had raped her several times between August and December of the previous year.

A verdict without deliberation

The jury was sent out on a Friday evening after being instructed by Judge Smith that reasonable doubt could be overcome if what he called “an inner feeling that directs your understanding” indicated the defendant’s guilt. That facially unreasonable jury instruction was tailored to fit the prejudices of a Mormon jury dealing with a non-Mormon defendant: In the Mormon faith, key truth claims are confirmed through an “inner feeling” that is described as the workings of the Holy Spirit. 

Hungry, tired, and eager to dispose of the unpleasant business before it ruined their weekend, the jury “deliberated” for less than two hours before convicting Whiteley. When contacted later by private investigator Mel Daniels, several jurors explained that they weren’t fully persuaded by the prosecution’s case, but that they thought Whiteley looked “mean.” 

“It didn’t help his cause any by looking so mean and staring at the jury,” complained Gwynn Miller, who was appointed as foreperson despite the fact that she attended the same Mormon ward as the supposed victim – a fact that was made known to Judge Smith during the trial. “I felt that we were all intimidated by him.” 

What Miller and the other jurors saw was not malice, but the righteous fury of an innocent man. Despite the fact that they were unconvinced of his guilt, the jury apparently believed a brief prison term would be suitable punishment for his visible lack of docility. They were astonished when Smith, insisting that Whiteley was incorrigible, imposed what amounted to a life sentence. 

Bear in mind that just three days earlier Smith had been willing to accept a plea bargain that would have kept Whiteley out of prison entirely. As is so often the case, Smith’s sentence reflected the “trial tax” inflicted by such functionaries on citizens who insist on defending themselves in court. 

Five years after being sent to prison, Whiteley persuaded Seventh District Judge Brent Moss to convene a post-conviction hearing in which he and appellate counsel John Rudin presented much of the evidence that had been neglected during the trial. This included Pastor Stoneman and other witnesses who had seen a happy, apparently loving couple during several incidents in which Canido was supposedly Whiteley’s hostage. Moss also accepted into evidence the translated transcription of a tape recorded October 1990 phone call in which Canido defiantly told her mother that she intended to marry Whiteley. The mother responded by accusing Whiteley of being a rapist, and threated to arrange the seizure of Canido’s children and her deportation to Bolivia. 

Called to testify in the post-conviction hearing, Canido was asked simply to repeat her original trial testimony. Rather than doing so, she invoked the Fifth Amendment seventy times. She did so at the explicit urging of her attorney, who said that she was concerned about a potential perjury charge. 
 
Judge Moss
On January 7, 1997, Judge Moss issued an order setting aside Whiteley’s conviction and ordering a new trial. Asked about that development, Sergeant Jared Furhiman paused from his effort to frame Christopher Tapp to express outrage that one of his previous victims would be given an opportunity for exoneration. Fuhriman was doubtless consoled – and relieved – by the Idaho Supreme Court ruling that overturned Judge Moss’s order. 

The decision to grant a new trial, Moss explained in a letter to the Idaho State Judicial Council, was made necessary by “Ms. Canido’s evasiveness in answering questions during the post-conviction hearing. Although Ms. Canido did not recant her trial testimony I was left with the uneasy feeling that justice was not served by the original verdict and that a new trial was appropriate. I am still of that same opinion.”

Yes, she recanted

Moss wrote that letter nearly six years ago. Since that time, new evidence has emerged verifying that Canido did recant her accusations in two letters she wrote in September 1999 – the same letters in which she accused former IFPD Officer Rick Hansen of abducting and raping her. 

Canido, who had committed bigamy by marrying Michael Whiteley in October 1990, married Keith McCabe after Whiteley was arrested. She remained married to McCabe until 2005, when she met a wealthy, elderly widower named John Commander, whom she married in 2006. That marriage was annulled within weeks after Commander’s adult children showed him that Canido was leeching him dry.
Still on the make: Canido in Bolivia.
During a May 8, 2007 deposition in the annulment proceedings, Canido was asked about the September 1999 letters of recantation. She adamantly refused to answer any questions about those letters, or the Whiteley conviction – until just before the deposition ended at about five o’clock that evening. 

“Did you sign them?” asked Commander’s attorney, Jeffrey W. Banks.

“The guy made me sign and I am not going to answer any more,” Canido angrily replied, thereby authenticating the recantation letters even as she pretended that the long-imprisoned Whiteley had somehow “made” her sign them. A few months later, she fled back to Bolivia, where she remains. 

Michael Whiteley is scheduled for a parole hearing on January 25. Even if he were granted parole – which will not happen unless he ratifies his wrongful conviction by acknowledging guilt – he cannot recover the decades that were stolen from him.

In 1991, the State of Idaho threatened to murder Whiteley unless he confessed to a crime he didn’t commit. Twenty-six years later, it is making good on that threat, albeit in sadistically incremental fashion.
                                                       This week's Freedom Zealot Podcast

If Kenneth Lee Drew had been a cop enforcing state edicts, rather than a repo man defending property rights, he would have gotten a commendation following a pursuit in which a thief killed herself. Not protected by "Blue Privilege," he is going to prison, instead:



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Dum spiro, pugno!