Saturday, June 11, 2011

In Which We Honor the Deserving But Really It Should Be the Norm

Follow the legal news and you occasionally find yourself pleasantly surprised that the folks you commonly bash as single-minded bullies unable (or at the very least unwilling) to admit that they could have gotten it wrong despite overwhelming evidence to the contrary sometimes act with honor and decency.
In fact, they probably do it often.
But sometimes it stands out.
And so we have, courtesy of The Smoking Gun, the peculiar saga of David Voelkert.
The lede in the first Smoking Gun story sets it up nicely.
Embroiled in a contentious child custody fight, an Indiana woman decided last month to pose on Facebook as a comely teenage girl in a bid to surreptitiously extract damaging information from her ex-husband.
And extract she did.
As detailed in this affidavit signed by FBI Special Agent Robert Dane (there's nothing particularly special about Dane; there are no ordinary FBI agents Angela Voelkert (the "Indiana woman") created a facebook page for Jessica Studebaker, a 17 year old girl of Angela's imagination.  She had Jessica friend (god I hate that neologistic verb - it's part of the reason I'm not on facebook) David and then turned over to the FBI the evidence that David told  Jessica he
  • was going to place a GPS unit on Angela's van;
  • had actually done so;
  • intended to spirit his kids away from Angela;
  • was going to arrange for Angela to be murdered;
  • would then run away with Jessica.
On Friday June 3, and based on Dane's affidavit, a Judge issued a warrant for Voelkert's arrest for placing the GPS unit (the only thing on the list that had occurred).  He was picked up and spent the weekend in jail.
Ok, it's kind of a bizarre story, but criminal law is filled with bizarre stories.  Even, maybe especially, bizarre stories that involve innocent people.  For, you see, David was innocent.
Innocent, but apparently not an innocent.
Several days before he started detailing all that to Jessica, David wrote his own affidavit that begins this way.
May of 2011 I received a friend request from a one Jessica Studebaker.  From the start of that friend request, I was under suspicion that it was not a real person, but my ex-wife or someone she knows.  I am talking to this 'person' on Facebook via messages through the Facebook mail system.  I am lying to this person  in extent to gain positive proof that it is indeed my ex-wife trying to again tamper in my life.  Anything said in the chat to her from me cannot be held as the truth and I am chatting to this person in attempt to prove to my couirt that my ex-wife will not leave my personal life alone.  This AFFADIVIT was to be done when I started chatting with this said person, but I think this is enough evidence that I think this person is no more than my ex-wife or someone that she knows and not a real person.  The lies that I am placing in this chat is for her to bring such up in court on the 8th day of June 2011.  I need proof of what my ex-wife has been doing, so this will be part of such.
Sure, his prose could use some work.  But you get the idea.  A double fake.
Pretty clever on David's part to see through what Angela was doing and turn the tables on her.
Except for that getting arrested part, of course.  And you know how that story plays out (or you do if you've been paying attention).
But not quite always, and this is one of the not quite times.
And so it is that we give a nod to Assistant United States Attorney Jesse M. Barrett of the Northern District of Indiana.  Because he saw David's affidavit and understood what happened.  And filed this motion.

Which was promptly granted.
So let us praise Jesse Barrett who did the right thing.  All in a day's work. Good for him.
Still, if the outcome is right, and if Jesse did the right thing, there's still that troubling thing about David having spent several days in the pokey for a "crime" that didn't occur.
I'm not bashing his wife for this, though she deserves some blame.  She did set up a scam to trap David, after all.  And she did.  But she couldn't have succeeded if he hadn't set up his own scam to trap her.  And he did.  Except that he got caught in it, too.
And maybe it's really not Dane's fault for taking David's faux confession to the faux Jessica as true and locking him up ASAP without, say, looking into it a bit (though you'd think, him being special and all, he might have done that).  But still.
A friend likes to say that he stopped doing family law to focus exclusively on criminal because at least "with a murder one of the sons of a bitch is dead."  Not particularly elegant, but he's got a point.
John Kindley, himself of Indiana, links to the Smoking Gun stories calling his two word post "Hometown Hero."  I assume he's referring to Jesse who did the right thing, though the two words are "David Voelkert" and it's hard to see just what he did to earn his cape and mask besides see through a scam, and then get caught by his own. 
The truth is that there's no moral.
It's really a sad story all around.
The not-all-that sympathetic David Voelkert.  Who spent several days in jail for a crime that didn't occur.  Because he was trying to snare his not-the-least-bit sympathetic ex-wife. Who was trying snare him.
And praise for a prosecutor promptly recognizes that an innocent person has been charged with a crime. and immediately acts to dismiss the charges.
Which if you think about it is nothing special.  He was just doing his job.  For which we honor him, though we shouldn't have to.
Because if just doing your job is worthy of special praise, then the system is badly fucked up.


  1. Voelkert is not only of Indiana but of South Bend, where my office is. We've got a mutual Facebook friend. I'm surprised that the local news has yet to pick up this story, and that I first read about it at the ABA Journal.

    I agree with you that there's really no moral to the story, which is why my own post was only two words long. I still unfortunately do family law, and appreciate the point of the friend you cited who stopped doing family law to focus exclusively on criminal defense. Perhaps that's the closest thing to a moral this story presents. But in light of the ugliness that contested divorces involving children commonly entails, Voelkert's reaction to his wife's attempted dirty trick is pretty understandable. I'm sure there's a lot more background to their story, but she clearly started this round. And I've got to give him credit for the panache of his reaction.

    Voelkert has been unwisely commenting on at least one account of this story on the internet. According to one of his comments, the judge in his divorce case yelled at both he and his wife when they were in court following the exposure of their spy v. spy machinations.

  2. Hard to blame the judge for chewing them both out (if it's true). The kind of scheming in which they engaged is both dangerous (really, David was remarkably lucky to get the charges dismissed) and stupid.

    Admittedly, his counter-scam displays some I've-watched-James-Bond-movies-so-I-can-pull-this-off enthusiasm. (Though one senses that he studied not Bond but Maxwell Smart or maybe Inspector Gadget).

    If they're represented by counsel, their lawyers should be chewing them out, too (unless the lawyers encouraged this, in which case they'll likely be facing disciplinary issues). If they're not represented by counsel, well, here's an example (OK, two examples) of why having a lawyer is generally better than going pro se.

  3. I should probably make clear on my post that as a family law attorney I wouldn't have approved of Voelkert's tactics or, God forbid, advised him to take the course he did. (The use of the word "hero" lends itself to an ironic interpretation, and I intended my use of that word in the title of my post to be somewhat ambiguous.) But the fact remains that if I were his attorney I would probably share my 38-year old client's suspicion that the "17-year old girl" who'd friended him out of the blue was in fact his wife, and might give some thought to finding some appropriate way to prove that.