Framing Steele: A Case Study of Sovietized American "Justice"

Edgar Steele (r.) confers with political activist Paul Venable.

Yes, I'd give the Devil the benefit of the law -- for my own safety's sake. 

-- Sir Thomas Moore, as depicted in A Man for All Seasons

When Edgar Steele was told on the morning of June 11, 2010, that his wife Cyndi had been killed when her SUV was run off the road in Oregon, his first reaction, understandably, was shock. That reaction mutated into panic minutes later when FBI Agent Michael Sotka told Steele that his mother-in-law had also been shot and killed.

“He wanted to contact family members and find out if they were okay,” testified State Trooper Jess Spike, who was at Steele’s home in Sagle, Idaho when the dire tidings were delivered. Asked by Agent Sotka who might have perpetrated those crimes and “who his enemies were,” Steele named “a number of organizations that may have been against him,” Spike continued. “There was like the Anti-Defamation League, Southern Poverty – there were one or two others. I don’t recall the acronyms or names of them.” 

Trooper Spike was referring to the Southern Poverty Law Center (SPLC), which bankrupted the northern Idaho-based Aryan Nation white supremacist group in a 2000 lawsuit. Steele, a controversial lawyer who described himself as the "Attorney for the Damned," had represented the Aryan Nation in court, thereby earning the abiding enmity of the SPLC and its allies, including the Anti-Defamation League -- both of which are quasi-private affiliates of the Homeland Security apparatus. 

In addition to his legal work, Steele was a polemicist on behalf of worldview that can fairly be characterized as white supremacist. The author of a book entitled Defensive Racism, Steele disavowed aggressive violence. This wasn't true of at least some of his detractors: Prior to June 11, 2010, Edgar Steele had received death threats that the FBI had traced back to the the so-called Jewish Defense League, which has been implicated in more than adozen domestic terrorist incidents in the United States. 

In the months leading up to June 11, Steele had endured a near-fatal heart attack. On the morning he received the news, he was still recuperating from a second health crisis, a nasal aneurysm that had left him hospitalized just a few weeks earlier. So he was in pretty fragile condition as horrible news accumulated suggesting that his enemies were laying siege to his family. But that wasn't the final shock he was to endure on that crowded morning: Agent Sotka suddenly announced, "Your wife is not dead ... you're under arrest."

As Sotka hauled the stunned and shaken Steele from his home, the FBI Agent encountered Dr. Allen Banks, a local biochemist family friend who had arrived that morning to help Steele haul a load of lumber from the Home Depot in nearby Coeur d’Alene. 

Brandishing a recorder, Sotka triumphantly told Banks: “We’ve got everything we need right here.” A few hours after being led to believe that his wife and mother-in-law had been murdered, Steele was charged with hiring a local handyman named Larry Fairfax to kill them. 

Trooper Spike would later admit in court that there was nothing in the June 11 conversation that indicated Steele’s guilt. The elaborate fiction created by Sotka was a “ruse” intended to get Steele to incriminate himself. Rather than reacting to a confession or a critical disclosure by Steele, Sotka arrested him when it became clear that he “wasn’t going to crack,” Trooper Spike recounted on the witness stand. 

As it happens, within four days of arresting Steele, the FBI had a confession from a suspect who admitted to placing a pipe bomb on the automobile Cyndi Steele drove to Oregon City to visit her cancer-stricken mother: Larry Fairfax himself, who had reportedly carried out the plot with unnamed "accomplices." The bomb was accidentally discovered when Mrs. Steele took the van to a Jiffy Lube. Fairfax, who we're told approached the FBI on June 9 to report that Steele had hired him to murder his wife and mother-in-law, hadn't disclosed the existence of the pipe bomb.

It wouldn't have gone off -- but the jury wasn't told.

Fairfax, who had done some remodeling work on the Steele home, was supposedly asked to carry out the double murder for $25,000 that would come from an insurance pay-off. (Fairfax wasn’t aware that Steele had cancelled his wife’s insurance policy two years earlier.) This arrangement was supposedly made on May 27, just a few weeks after Steele had been hospitalized for his second life-threatening aneurysm. 

Prior to Steele's arrest, Fairfax had cashed in roughly $10,000 in silver. Edgar and Cyndi claimed that Fairfax -- who knew where the family had cached precious metals on their property -- had stolen the silver. Fairfax insists it was part of the pay-off for his role in the murder plot. All that is known for certain is that the silver had belonged to the Steeles before Fairfax cashed it in. 

It is likewise known for sure that Fairfax -- with the help of his still-unknown accomplices -- built the pipe bomb and placed it on the undercarriage of Cyndi Steele’s vehicle. Edgar Steele’s only connection to the pipe bomb was a recorded June 10 conversation with Fairfax in which the phrase “car bomb” was spoken. Fairfax and the FBI insisted that the conversation made reference to an earlier, unrecorded agreement between the two of them that Fairfax would kill Cyndi Steele and her ailing mother. 

During his testimony in Edgar Steele's trial, Agent Sotka admitted that the FBI had given Fairfax and James Maher $500 and that "we decided to send Mr. Fairfax over to Portland in case Mr. Steele asked for a phone call from him." That call, according to Agent Sotka, was intended to be Steele’s alibi, proving that he was nowhere near the scene of the crime when it occurred. 

A stronger case can be made that this call was designed to be the finishing touch on the frame the Feds had constructed to entrap Steele. By calling from Oregon, Fairfax would create an interstate “nexus” that supposedly justified federal charges against Steele. It's important to note that this element of the case against Steele involves something he didn't do -- namely, contacting Fairfax in Portland -- while Sotka admitted under oath that it was the FBI that sent Fairfax to Portland. 

Last May, following a trial that lasted less than a week, a federal jury convicted Steele on four counts, including conspiracy to commit murder. He faces a mandatory minimum of 30 years in prison – which, owing to his age and fragile health, is a life sentence. The prosecution case that resulted in that sentence is miraculously untainted by reliable evidence. 

The alleged victim, Cyndi Steele, has been her husband’s most consistent and vocal defender, despite what she has described as intimidation by Agent Sotka. The so-called pipe bomb was little more than a stage prop incapable of exploding – a fact withheld by the Feds until the day after Steele’s trial ended, when it was introduced, without Government objections, during Larry Fairfax’s sentencing hearing. 

Fairfax, who manufactured a supposedly "lethal" weapon of mass destruction as part of a plot to murder two innocent people, was charged with possession of an "unregistered firearm" and given a sentence of 27 months in prison (with credit for time served), followed by three years of supervised release. He was ordered to pay Cyndi Steele -- his victim -- a total of $900 in compensation. That detail eloquently testifies of the contemptuous hostility the Feds have for the uncooperative "victim." 

As with so many other prosecutions of this kind, this case shouldn’t have been in federal court in the first place. 

Edgar Steele “did not `cause’ anyone to travel in interstate commerce,” points out his attorney Wesley Hoyt in a motion for a new trial. “Government informants Larry Fairfax and James Maher were dispatched from Idaho on June 11, 2010 by the Government, not the defendant. They were paid $500 by the FBI to travel to Oregon … so that FBI Agent Sotka could have Fairfax call Mr. Steele from an Oregon prefix” – thereby creating a supposed “jurisdictional link” to justify a federal prosecution.

This is a familiar FBI tactic: Where there is no clear federal “nexus,” create one through a letter or an interstate telephone call. In the 1991 case U.S. v. Coats, the Fourth Circuit Court of Appeals ruled that an FBI-instigated interstate phone call that “was contrived by the Government for that reason alone” did not provide the desired “jurisdictional link.”

The FBI’s claim that Steele had actually hired Fairfax to kill his wife depends on two dubious pieces of evidence, neither of which is sufficient alone but that supposedly validate each other: The ambiguous and disputed recording of a conversation between Fairfax and Steele on June10, 2010, and Fairfax’s testimony. 

Judge Winmill (l.) with Russian Judge Vladimir Soloyev in 2002.

During the trial in Boise, the defense repeatedly objected to the introduction of the recording, and the Government-provided transcript, on the basis that they were offered without “foundation.” 

Addressing that objection, Federal District Judge Lynn Winmill ruled that “if he [Fairfax] testifies that he has listened to it and it accurately sets forth what was said at the time, then that is the foundation.” In its closing arguments, the prosecution heavily emphasized the claim that the recordings likewise “corroborated” Fairfax’s account. The problem here is that both of those pieces of “evidence” are terminally flawed – and since each of them is thoroughly impeachable, they can’t be used to validate each other. 

The chain of custody necessary to authenticate the recordings breaks down at the very first link. Fairfax’s demonstrated dishonesty (the Feds were forced to admit that he was "not completely forthcoming" about the pipe bomb) makes him unsuitable as a corroborative witness regarding their reliability. “In order to authenticate the records, the Government presented the testimony of an admitted liar … who during trial stated that on June 9, 2010 he lied to the FBI when he did not tell them about the existence of a bomb on Mrs. Steele’s car,” notes the motion for a new trial. 

FBI Agent Sotka claimed that Fairfax and Steele were under constant surveillance on the Steele family’s property while the recorded conversations took place. However, the  discussion took place in a barn, while the two of them were concealed from view. Since the device concealed on Fairfax was a recorder rather than a “wire,” nobody heard the conversations as they actually occurred. 

On the witness stand Agent Sotka described how he downloaded the digital audio file from the recording device onto an FBI computer in Coeur d’Alene with a special proprietary software program. From there, the file was reportedly uploaded to a database at an FBI lab in Virginia. Sotka did this without listening to the recorded conversation. He then copied the file onto a compact disc, from which the file was re-copied onto a second disc. At that point, according to Sotka, he purged the original digital file from the recording device, since “part of the procedure is to delete the conversation and have the recorder clear for the next time you need to use it.” 

Sotka appears to be selectively fastidious about following FBI procedures, since he did all of this by himself, without having a second Agent present, as dictated by Bureau policy. What this means is that the recordings heard by the court – and that had been played to Cyndi Steele by Agent Sotka prior to the trial – were, at the very best, a third-generation copy of the original digital file, which was destroyed by Sotka without being heard by himself or anybody else.

When the version of the recording was played for Cyndi Steele, the alleged victim and target of the purported murder-for-hire plot was not convinced that what she heard was an actual conversation involving her husband. Furthermore, the version of the recording played in court contained an odd repetitive clicking noise, which the prosecution insisted was the sound of “Tic-Tacs” rattling in Fairfax’s pocket. That noise, which wasn’t present on the pre-trial version, is the kind of audio artifact that can result when a recording is digitally assembled from several different sources.

Dr. George Papcun, a forensic scientist who has served as an expert witness and law enforcement consultant for several decades, detected numerous “transients” and other anomalies – by one count, roughly 300 of them -- in the pre-trial version of the FBI recordings. Dr. Papcun concluded that there was “a reasonable degree of scientific probability that [the recordings] do not represent a true and valid representation of reality and they are unreliable.” That assessment provides ample, if not unassailable, grounds for reasonable doubt, especially in light of Dr. Papcun’s credentials. 

After finishing his undergraduate degree in mathematics at the University of Arizona, Papcun went on to earn a Master’s Degree in Formal Linguistics and a Ph.D. in Linguistics (with a specialization in Acoustic Phonetics) from UCLA. As a graduate student, Papcun was awarded Ford Foundation and National Defense education fellowships; his professional work earned an award from Johns Hopkins University and a place on the R&D-100 list of top achievers in “Technological Innovation.” He has been an advisor to local, state, and federal law enforcement agencies, including the Department of Homeland Security, and an expert forensic witness in numerous high-profile cases.

Not surprisingly, the prosecution attempted to exclude both Dr. Papcun’s report and his testimony from the trial. On May 2, Judge Winmill held a hearing to determine whether the defense would be permitted to present Papcun’s testimony. At the time, Papcun was vacationing in Bora Bora, and Winmill initially ruled that he could testify via video conference on the following day. However, the prosecution complained that this arrangement would be unacceptable, since it wouldn’t permit them to “confront” the witness – a right that is guaranteed to the defendant, not the prosecution, by the Sixth Amendment to the U.S. Constitution. 

On May 3, Judge Winmill, exhibiting his habitual, undisguised bias in favor of the prosecution, dutifully reversed his ruling and issued an entirely whimsical demand that Dr. Papcun be physically present in Boise, Idaho no later than 8:30 a.m. the following morning – Wednesday, May 4 – in order to testify at the trial. 

Since neither teleportation nor sub-orbital commercial flight is presently available, the earliest Papcun could be available was Thursday, May 5. Papcun was willing to interrupt his vacation, and the defense was willing to pay the expense. However, Judge Winmill – who was consistently flexible in meeting the prosecution’s demands – maintained that there wasn’t sufficient wiggle room in his schedule to permit Papcun to testify on Thursday. None of this would have been necessary, of course, if Winmill had simply stuck to his initial ruling and permitted Dr. Papcun to offer fully interactive testimony by way of a video conference held at the nearest U.S. consulate.

Judge Winmill’s earnest concern for the supposed right of the prosecution to “confront” Dr. Papcun stands in stark contrast to his indifference to Edgar Steele’s constitutionally protected right to confront a key prosecution witness, Ukrainian resident Tatyana Loginova – whom Steele had contacted as part of what he and his wife Cyndi both described as his research into the Russian “mail-0rder bride” scam.

 

Steele's daughter Kesley testified under oath that both she and her mother were aware of that research, and often joked about it. That account was confirmed from the witness stand by family friend Allan Banks, who said that Steele had told him about contacting several women from the former Soviet Union as "part of a legal case."

 The question of motive was probably the biggest of the numerous weaknesses in the prosecution’s case: Why would a man who had just recovered from a near-fatal aortic aneurysm seek to murder the wife whose personal care had been indispensable to his recovery? 

The prosecution confected a story in which Steele – a senior citizen in fragile health – was secretly trolling the Web in search of a nubile young girlfriend, and had developed a schoolboy crush on Miss Loginova. 

Loginova’s testimony was critical to the prosecution’s case, and the “right to confront” protected by the Sixth Amendment required that Steele and his counsel be given an opportunity to cross-examine her. However, Winmill permitted the prosecution to enter into evidence a videotaped deposition conducted via video conference with the aid of a Russian language translator. Loginova’s story included a claim that Steele had promised to visit her in Ukraine in August 2010. 

While the Edgar Steele jury was permitted to hear Loginova’s videotaped testimony, it was not permitted to hear the testimony of Dr. Robert Stoll, who had spent several hours in Steele’s company on June 10 – the day he supposedly planned to murder his wife. Dr. Stoll, a local veterinarian, has filed an affidavit recounting how he had discussed Steele’s health problems and how he was impressed by “the manner of Edgar’s tender affection for his wife and family. I believe that this man’s intent … when I visited him was not to kill anyone, especially his wife.” 

Cyndi Steele and attorney Wesley Hoyt.

To understand the deeply prejudicial nature of Winmill's rulings in this regard it’s necessary to take into account the composition of the jury: In a case involving an alleged plot by a husband to murder his middle-aged wife, the jury consisted of eleven women and one man. 

The panel that emerged from voir dire was ideal for the prosecution’s theory of the case, which could have been the plot from any of several dozen made-for-TV movies of the kind broadcast incessantly on the “Lifetime” cable network: The scheming, unfaithful husband, driven by ego and what remains of his mid-life libido, plots to murder his long-suffering wife in order to take up with a pneumatic trophy bimbo. 

Edgar Steele is a widely despised figure. His legal practice was devoted to defending the rights of similarly marginalized and disreputable people out of the conviction that "it is the ... politically incorrect whose rights are first infringed and then eliminated," as he pointed out in a speech he delivered in Jekyll Island, Georgia almost exactly two years before his Stalinist show trial in Boise. 

Actually, the comparison to the Soviet-era Russian legal system is unfair, given that a defendant hauled before a Soviet criminal tribunal actually enjoyed a small but measurable chance of acquittal.


After the Bolsheviks seized power in 1917, the jury system -- which had been established under Alexander II in 1864 -- was abolished and replaced with"People's Courts" composed of a judge and a panel of two to six Party-appointed "assessors" who heard all of the evidence and decided all questions of both fact and law. The assessors "became known as `nodders' for simply nodding in agreement with the judge," wrote federal Judge John C. Coughenour in an article published by the Seattle University Law Review. "People's assessors virtually always agreed with judges; acquittals were virtually nonexistent.... [U]nlike our adversarial system, the Soviet inquisitorial criminal justice system neither prioritized nor emphasized the rights of individual defendants, but instead paid homage to the interests of the state."

What Judge Coughenour describes as a contrast between the Soviet and American legal systems is actually one of the strongest points of similarity. Lew Rockwell recently pointed out that in the pseudo-legal proceedings referred to as "trials" by the federal Leviathan, the defendant "wins once every 212 times" -- a respectable approximation of "never." During the late Stalin era, Soviet procurators were ordered to achieve a 100 percent conviction rate; their counterparts in contemporary U.S. federal courts have essentially accomplished that feat. This is because the federal system, like its Soviet predecessor, is designed to serve the interests of the State -- and federal juries are typically purged of anyone unwilling to play the role of "nodder" in a show trial. 

During jury selection in the Edgar Steele "trial," Assistant U.S. Attorney Traci Whelan, who presided over the prosecution, carefully scrutinized potential jurors for what she called "hidden biases" against "the United States Government." Neither Whelan nor Judge Winmill was willing to abide the presence of any juror who understood that the jury's role is to force the government to overcome the constitutionally prescribed "bias" in favor of the defendant. They needn't have worried.

In Idaho, the most "anti-government" state in the Soyuz, the Feds were able to win a murder conspiracy conviction in a case without a victim, a murder weapon, or a motive, using only a doctored audio recording and the self-exculpating testimony of an admitted liar who confessed to manufacturing and planting the non-functional bomb. Andrei Vyshinsky would be suitably impressed.

(Note: In the original version of this essay, I mistakenly reported that Dr. George Papcun had offered to fly to Boise for the "pre-trial hearing"; in fact, he had attended a pre-trial hearing, but was prevented by Judge Winmill from testifying at the trial. My thanks to Violet Harris, who attended the trial and took comprehensive notes, for that very important correction. I likewise erred in referring to Dr. Allen Banks as a veterinarian, rather than a research scientist who specializes in chemistry and biochemistry; my thanks as well to Robert Magnuson for correcting that mistake.)

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 Dum spiro, pugno!