16 October 2017

Kids These Days

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alex sesame street

“My dad’s in jail. I don’t like to talk about it. Most people don’t understand,” the doll said on the news. The announcer went on to say that one out of 28 kids have a parent behind bars which was why Sesame Street was introducing the blue-haired, orange-skinned Alex, the son of an incarcerated father and newest puppet on the block.

“I mean, that’s kind of interesting, no?” I asked all the women in the TV area.  “They aren’t making that character out of nowhere. They either got a lot of feedback that kids watching couldn’t identify with the stories or they read some demographic data that says that this was a good idea. We’re talking millions of kids.”

None even responded.

I’m not an abolitionist but if there is any argument that every prison should be razed to the ground it’s the effects that separating children and parents have on little ones. It is pure violence yet it looks as calm and procedural as these ladies sitting here in the rec area, ignoring another one of my pathetic goads to get them to talk about current events.

I waited for a legal visit once when another inmate came in and told the visits officer she was there to see her daughter through DCF [Department of Children and Families]. There’s a window where you can see visitors before they come into the visiting area and I turned to spy the cutest little girl I had ever seen. A small red bow wrapped itself around her tiny, dirty blonde ponytail and her shirt, a navy Ralph Lauren polo shirt dotted with white polo ponies, topped off jeans and Nikes.

“Is that your daughter? She is so cute. I say that to a lot of the inmates but really mean it when I say that to you. She’s spectacular,” I told the mom

“Thanks. Yeah, I know. It’s the last time I’ll see her for 14 years. They’re terminating my rights.”

“What?!”

“I can’t have contact with her again until she’s 18.”

And with that, the door opened and mother and daughter reunited like it was any other day and went into the play area, DCF supervisor lurking in the corner. They sipped non-existent tea and stirred invisible macaroni in a toy kitchen, both remaining composed about the fact that a system was killing each of them to the other. They’re dead to each other. For fourteen years.

Then [Attorney] Ruane arrived and we were escorted into one of the private rooms where I burst into tears. Literally. My face exploded at the thought of the conversation that was happening between parent and child in the play area.

“I get it. You wanna get out of here,” Ruane said as he unpacked carefully labeled folders. He works with his son, sees him every day.

“No. That’s not…” I shook my head. “You wouldn’t understand.” To this day, I can’t remember one word in any of those folders and my freedom was filed in there.

I hadn’t seen the mother here before and I haven’t seen her since so she’s not a lifer; she’d be living in this unit, watching the news with us if she were. She probably did something to kick off the termination proceedings, but how bad could it have been if she isn’t even doing the type of time I am? And DCF allowed them to say goodbye – would they do that if she posed danger to the child? Sure, a social worker stalked them from across the room, but would DCF permit that toddler to connect with a person who had beaten her or neglected her in a dangerous way? I assume there’s some theory of trauma that would prevent that. Let me rephrase: I’m sure there’s a theory of trauma – why didn’t it prevent this?

I bet that wasn’t the case but they still took her daughter away, to what appears to be an upper-middle class family that already loves and dotes on her. The girl will be okay but she won’t be the same.  Doubt will follow her everywhere she goes, even after she gets wind of what happened to her fourteen years into the future. No accusation or conviction can extinguish a child’s love for and pride in her parents, but criminal charges make that love and pride smart in unending waves.

Why wasn’t I good enough to make you good? And if you didn’t do it, why didn’t you fight or fight harder? How did you take care of me when you can’t take care of yourself? I ask myself those questions every day. This entry has more queries, question marks and open ends than anything else I’ve written so far. And answers? There are none. I’m tenacious and introspective enough to find them if they were somewhere. They’re not.

Accepting that you’re a fuck-up is easy; no one knows how bad you are more than you do. But accepting that the person who you thought was perfect – and who was supposed to perfect and lead you – is more than just clay-footed and may have some very real problems navigating the world is excruciating. They call this adulthood, but it’s really just abuse.

In front of a blaring TV set that had stopped reporting on Alex, I zoned out remembering all of this: the polos, the puppets, the parents, the pain.

“Winks, what’s wrong?” someone asked.

“I don’t wanna talk about it,” I told them and headed back into my cell with my forefinger pressed against my lower eyelid. They can’t understand.

THREE IDEAS IN CRIMINAL JUSTICE FROM OCTOBER 9 – 15, 2017

halfway
A former federal halfway house.

It’s really happening now…Our “law-and-order” president and his administration are quietly cutting funding for halfway houses. I refused halfway house placement because, to me, it was just moving prison to the street and allowing people to wear their own clothes. However, for someone who doesn’t have a place to live once they leave custody, halfway houses provide essential transitional living space. This is a guarantee of crime.

I attended the John Jay College of Criminal Justice’s Smart on Crime conference this week which had embattled Manhattan District Attorney Cyrus Vance, Jr. on the agenda. Conference attendees figured that he wouldn’t show up because he would have to face some questions about accepting graft guised as campaign contributions after giving the Trumps and Harvey Weinstein passes for obvious criminal conduct. Vance did appear at the conference and simply told people during the Q and A session (which was not recorded) in the audience that everything he did was legal. I have two thoughts on Vance’s reply that everything he did was legal. They are: 1) no shit, that’s the problem; and 2) he laughs at this as a defense when he prosecutes. Maybe he needs to open up to the fact that he’s more like his targets than he wants to admit.

And the Supreme Court of the United States just accepted (or granted certiorari to you legal eagles) a case, McCoy v. Louisiana, where a defense attorney ignored his client’s claims of innocence, refused to investigate an alibi defense and admitted that his client committed the crime over his objections. A Yale Law School clinic wrote a brief in support of Mr. McCoy and they argued that McCoy’s attorney switched sides and fought for the prosecution. The issue of attorney disloyalty needs to be addressed and outlawed by our highest court but I doubt it’s likely. The same court has already approved of conceding guilt on a client’s behalf in capital cases like this one. Plus, the standards of effective defense are so low now than nothing an attorney does is cause for reversing convictions. You should follow this case because if you think defense attorneys protect their clients. They don’t.

 

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9 October 2017

Pity The Fool

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prose

“He who represents himself has a fool for a client, Bozelko,” the strip search C/O said when I got back from court. She told me to make sure my lawyer doesn’t force me to take so many court trips. I didn’t have one, I told her.

“I’m different,” I replied.

“Oh, you’re smarter?” she huffed.

“No.  He who represents himself does have a fool for a client…because he’s a ‘he.’ I’m a female. Totally different game.”

Representing yourself is a different game, but it isn’t always a losing one. According to the limited data available on the subject, pro se criminal defendants usually fare no worse than their represented counterparts. Erica Hashimoto, a law professor, conducted one of the only studies of the effectiveness of self-representation and found that, at the state level, pro se defendants fared better than their represented counterparts. Half of all pro se defendants walked away without a conviction; only 25% of attorney-represented people cleared the conviction hurdle. Of the self-represented people who were convicted, only half of them were convicted of felonies whereas 84% of represented people who lugged convictions out of the courtroom carried the extra weight of felony status.

Only 42% of self-represented defendants entered into plea bargain agreements while almost twice as many represented defendants, 71%, folded and pleaded guilty. Of those pro se litigants who displayed their layperson chops at trial, 2% of them were acquitted of all charges. It doesn’t sound promising for the DIY legal set – until you learn that only 1% of represented defendants were acquitted of all charges after trial; pro se defendants are twice as likely to get themselves acquitted.

The results in federal courts were comparable, and both upended the idea that counsel is necessary for access to a criminal court.

And this pisses off everyone in a courtroom  The right to counsel doesn’t exist (if it does at all) for the protection of the defendant. It exists to make lawyers feel needed, like they have some knowledge that no one else can get from reading the same books.

So far, I’ve had one lawyer who told the jury three times that there was no reasonable doubt in her closing argument and used Buck Cherry’s “Crazy Bitch” as her ringtone (Angelica Papastavros), another one who didn’t know I was going to be sentenced and cried when I got screwed (Tina Sypek D’Amato) and who needed me to write out the direct examination questions for her in another trial, a third who never contacted an alibi witness and lied about hiring an investigator (Dean Popkin). I have a habeas attorney who went to the trouble of subpoenaing necessary phone records yet made sure that he secured only half of them.  Even after all of that, I dared to hire the dude who represents the WWE star who’s here – I’ve never heard of her, Sunny, but apparently she’s big on the wrestling circuit – and then she told me in the medical unit that he was removed from her case for “inappropriate behavior,” whatever that means in reference to someone who fake fights other people in costumes. I mean, would she mind if he threw her against a wall? What’re we talking about here when it comes to propriety?

With these fine legal minds barricading me from injustice, what kind of an asshole would I be to get another lawyer?

The right to self-representation was established by the Supreme Court in 1975 in Faretta v. California and it’s supposed to be absolute.  In practice, though, it’s not; lower courts have tacked on limitations to the right: the request has to be timely made, it cannot be made for the purpose of delay, it must be made prior to the start of trial. Because of these conditions – rules that are essentially made up because they don’t appear in the original decision – many people are denied the right to represent themselves. I was denied when I wanted to represent myself and prevent Papastavros’ perfidy because my request was made after the jury was selected. There are at least 2509 defendants who were also denied that right if appellate decisions are any indication. That many people appealed court’s ruling denying their motions to represent themselves.

Another, older Supreme Court decision has enabled these encroachments on the self-representation right.  Gideon v. Wainwright, the seminal 1963 case on the right to counsel, held that due process rights are violated when laypeople are left to represent themselves against criminal charges. When Faretta was decided twelve years later, the right granted to defendants to represent themselves wasn’t so much an individual right to self-determination as it was the right to reject a court-appointed, taxpayer-funded attorney who would be assigned to you without your even requesting him.

Even though the petition that launched the right to counsel into the nation’s highest court was handwritten by a pro se petitioner – Gideon himself – the idea that self-represented defendants are very unlikely to receive a proper defense  was part of the Gideon Court’s reasoning and ended up creating the welfare model of criminal defense that we use today. As many as 90% of defendants in various jurisdictions are indigent and qualify for appointed counsel. Many of them languish in jail because there aren’t enough attorneys for them and the lawyers that are available are so overburdened that they can’t even render effective assistance. But people’s cases won’t move without them.

It would be unjust to force all, or even most, of these defendants to represent themselves just to jump-start prosecutions. Too many people facing criminal charges are functionally illiterate, don’t know how to do legal research and even more have trauma histories that affect their self-concepts and confidence to challenge adversaries in a meaningful way.

But data shows that many people can represent themselves effectively, better than the lawyers that they’re waiting for. This isn’t a total vindication of the collective ability in prisons, but more an indictment of modern criminal defense.  If there were a way to combine the defendant’s knowledge of the case with the attorney’s expertise and experience into a representative team, we might move cases through criminal dockets more quickly and effectively.

There is a way; it’s called hybrid representation and, while constitutionally permissible, it’s disfavored by courts because the see the right to self-representation and the right to counsel as mutually exclusive; Gideon and Faretta can’t work together. But this isn’t true. It’s the lawyers and the courts who won’t work with defendants if they want to keep their cases moving.

The Faretta decision actually says the right to represent yourself and the right to a lawyer are the same right, just different facets of it. Yet courts will either create situations which amount to self-represented suicide or they force government assistance on litigants. They rarely allow anything in-between.

If I could get over my anger at my attorneys, the in-between might work for me, too. Working as a partner with someone so I can shape my own fate yet still feel some trust in someone who fulfills their duty of loyalty to me might help me from having to flip the bird to the judicial branch.  That’s how pro se representation is interpreted. I don’t kid myself that anyone, including me, sees it as a mere constitutional exercise.

No defendant in Connecticut can have hybrid representation; it’s outlawed for everyone. Instead, the pro se defendant has “stand-by counsel”; the attorney can’t jump in and correct something he might do against his interests. All the attorney can do is answer questions when asked – if the fool knows to ask them.

If more courts recognized hybrid representation and allowed a team to represent defendants – the client and the lawyer together – then we might be able to start moving this backlog of people who are waiting for counsel around the country.  And produce fair results.

Hybrid representation does more than clear court clog. There’s an empowering message in hybrid representation which is that the defendant has the ability – and the duty – to clean up his own mess. Rather than being served by a “public pretender,” the defendant can get real and contribute to the resolution of his own legal problems.

Not enough defendants have demanded hybrid representation – it’s banned in many states – because they don’t know about it or they think they’ll never win if they try to help themselves. Statistics say that they can prevail – or at least fare better – if they pitch into their own defense. Hybrid representation holds tremendous potential for relieving the criminal defense problems around the country. Refusing to explore this solution makes fools of us all.

Even me.

THREE IDEAS IN CRIMINAL JUSTICE REFORM FROM OCTOBER 2 – 8, 2017

paddock

Obviously, the news was filled with stories of the Las Vegas concert shooting, one of the largest crimes in the history of the country, including the fact that the shooter – amazingly enough – had no criminal record.  Many terrorists don’t have rap sheets and convictions.  Looking for them amongst convicted felons is a waste of time.

The New York Times reported that prison guards in Alaska put collars and leashes on naked inmates while forcing them to walk in front of female staff members and left them in cold, filthy cells without proper covers. The investigation that discovered these abuses isn’t notable just for the horrors within it, but because it was written by an ombudsman, a dying breed of correctional supervisor.  If Alaska didn’t have an ombudsman, these human rights violations may never have come to light. (Translation: this kind of correctional chicanery is happening in facilities in states without an ombudsperson.)

Manhattan District Attorney Cyrus Vance, Jr. took two hits this week. First, ProPublica, working with The New Yorker, dropped the bomb that Ivanka and Donald Trump, Jr. dodged a felony indictment for fraud years ago, after their attorney, Mark Kasowitz, made a $25,000 donation to Vance’s re-election campaign, only to have it returned prior to Kasowitz’s meeting with Vance. After the prosecution was shuttered, Kasowitz reappeared with a $32,000 donation to the same campaign, a contribution that was returned only recently. Then, days after this Trump bombshell, it was revealed that embattled Miramax founder Jeffrey Weinstein’s lawyer donated $10,000 to Vance’s campaign four months after Vance decided not to charge Weinstein with sexual assaulting a model. I’ve said it before; I will say it again. Prosecutors are inherently dirty.

 

 

 

 

 

 

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2 October 2017

T and A in A&D

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admissionsanddischarges
A guard’s desk at a Central Prison Mental Health Facility in Raleigh, North Carolina.

In here, the sign of seasons’ turning is waiting in a line. One in the fall to get a coat. Another in the spring to hand it in. The good coats are the army-green barn jackets and they usually go to the long-term inmates, women like me. The low lottery numbers catch the nylon ecru short ribbed jackets. Anyone wearing one of them is clearly in the lower prison caste because no O.G. wears those swingy, cream-colored jokes. I went coatless all winter when one was thrown at me when I came through the doors of A&D [Admissions and Discharges] in December 2007 and the autumn coat waiting lines had long dispersed from the building.  I used it as a pillow instead because you couldn’t buy a pillow back then. Now, for my sixth jacket, my unit had been called the day before for the line-up, when I was at court, so I left work early to dodge the fate of flimsy, light-colored winter gear because I don’t need something soft and superfluous to rest my head. I bought a nylon bag of air, labeled “pillow,” years ago.

“[C/O] Boxman such a motherfucker. I hope they tell his wife how he be fuckin’ [C/O] Questionable Taste up in here in A&D on third shift!” First-in-Line announced. She must have just been yelled at by him before I joined the queue.

“Oh, shit. He fuckin’ her? I knew it. And they doin’ it here in A&D? That’s nasty.” Third-In-Line declared.

But I was laughing, hard.

“That’s hilarious.”

“You think it’s funny Questionable Taste a damn home wrecker?  How they get you is how they leave you,” First-in-Line instructed me without turning around.

“No, I mean someone having sex in A&D.”

“It’s nasty, right? This shit look dirty,” Third-in-Line checked with me as she looked to the floor and the walls, made a sour face.

“It’s funny. Intercourse in Admissions and Discharges? That’s hilarious. I had no idea the staff was so euphemistic,” I told them before I broke back into giggles.

“What that mean?” Second-in-Line asked.

“A euphemism is a polite way of saying something out of bounds in normal conversation. So…you know. Admissions….discharges. Instead of saying ‘sex.’ Like sex is a series of admissions, get it? Followed by a discharge…?” I explained, haltingly.

Between the kids they had, the prostitution charges they racked up, this crowd in line had way more sex than I ever could and they still didn’t get what I was saying. I felt like Steve Buscemi in [the movie] Fargo when he’s trying to explain the old “in-n-out” to the outcall girl with him in the nightclub. They were nonplussed  by my wit and uninterested in the language lesson.

Originally, I thought the name they gave to the prisoner loading dock – “Admissions and Discharges” – was odd, like anyone was giving consent for us to enter; we’re wanted at the prison’s front door – which happens to be way in the back – as much as we wanted to arrive there. It’s not like that second-shift crew, headed by the C/O who sits diagonally in the corner of the front desk, is psyched to unlock the doors and let our shackled feet short-shuffle in.

Then I thought “A&D” was just a nod to the mental health epidemiology within, which is extensive and screaming for remedy. I read that the Cook County jail in Chicago is the largest mental health provider in the state of Illinois. It was reasonable to assume that,  through using that name, they were treating us like patients. But any medical etymology is purely accidental.

“Admissions and Discharges” was the terminology used by English workhouses in the 13th century until not that long ago, places like the one where Dickens’ character Oliver Twist dared to ask for more. It was England’s welfare program; poor people had to turn themselves in to get food and shelter and live in government custody. Workhouses were prisons without the prosecutorial prelude. And all you had to do to be admitted to inpatient welfare was have nothing and be hungry.  So the place didn’t turn into a hotel, they enforced hard labor as a incentive to avoid getting yourself in such a jam that you couldn’t handle your own business anymore.  In short, to get your gruel, you did grueling labor to align yourself with (former prisoner himself) Saint Paul’s rule that ‘He who shall not work, shall not eat.’ When they thought someone had a chance to fend for themselves outside, wardens got even more Christian and tossed them into the warmer weather.

The same thing happens here every autumn. As chill reluctantly admits itself to the air in September and October, and sleeping in a tent on any patch of land whose owners aren’t around to call the cops won’t work anymore, women intentionally place themselves in justice’s way and turn themselves in for shelter and food.  Proposition a police. Surrender themselves on an old warrant. All to get meals and dry, warm lodging for the winter because poverty’s a crime.

Now you can get the food and shelter without being in physical custody. I don’t get how modern society has liberalized itself enough to recognize the dignity inherent in being free yet still allows people to exist in such indigence that they’re willing to give that liberty up in order to survive the winter. And, if they’re lucky, score a green coat in the style the fashion industry calls a “work jacket.” It makes me wonder if the person who chose them for the modern workhouse knew that.

“That what you call sex? Additions and discharges?” Second-in-Line asked me and shook her head and said “Motherfuckin’ white people.”

“Admissions. Admissions and discharges. And no, I don’t. Well, maybe, after today. I’ll call it ‘gettin’ a little A&D’.” And then they started laughing with me.

 

THREE IDEAS IN CRIMINAL JUSTICE FROM SEPTEMBER 25 – OCTOBER 1, 2017

weiner
No smartphone cameras allowed in court. Ergo, no courtroom sexting.

Former New York congressman and mayoral hopeful Anthony Weiner is going to prison. He was sentenced to 21 months in prison last Monday for sexting a teenager, although his real crime is enabling the rise of Breitbart News (no one paid attention to Breitbart until they broke the “grey underwear” story).  Here’s  what former prisoners wanted him to know about the public service venture he’s headed into.

Hannah Kozlowska, a 2017 John Jay/Harry Frank Guggenheim Criminal Justice Reporting Fellow, a fellow Fellow of mine, reported for Quartz on Walmart’s extortion of shoplifting suspects. If you get nabbed for allegedly boosting something from the retailer, you get a chance to take a 6-8 hour course which costs you several hundred dollars. Or you can choose to have them call the police and get arrested, whereupon you get another chance to pay several hundred dollars in bail.  The program was created because, in many districts, the majority of calls to law enforcement were from local Walmarts so it might save taxpayers money in reduced police costs, but it will also make Walmart and the private company administering the program a lot of money.

James Holmes, the man sentenced to life in prison for the 2012 Aurora, Colorado movie theater shooting, was moved to a federal penitentiary in Pennsylvania because Colorado corrections officials didn’t feel he was safe in the state system. This comes after fits and starts over Colorado’s failure to disclose Holmes’ location to victims’ families. I understand the need for transparency in corrections and I agree that victims and their families are stakeholders in the process of justice, but I do not understand why the victims are so invested in knowing where Holmes is sleeping. Is it fear because they think he’s likely to escape? If so, how would knowing where he was in custody help prevent that? I know these people have been indelibly harmed by Holmes’ actions, but too many times the whims of victims run the system.

 

 

 

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