19 June 2017

Ain’t It a Shame? You Win Again

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

tophearse

I remember the day I lost my first appeal, or at least they day I knew I lost it. It was February 17, 2010 and I was called into the Zero North counselor’s office. It’s one of the only times I’ve been able to speak with an attorney in here. And I didn’t even argue with her or complain about the loss. I just listened, said nothing.  That’s how I knew I was either rehabilitated or totally broken. On second thought, they’re the same thing.

“It’s really hard to win an appeal,” said the public defender who was forced on me, my juridical rapist. I got the message; with that shitshow of a trial, you lost before the game started, Bozelko.

hearseIf there’s any lesson about how difficult it is to win a criminal appeal, it’s the story of John Keoghan. The Catholic priest watched from above (or below) as his convictions for abusing children were vacated after he was killed in a Massachusetts prison while his appeals were still pending. He won. But he had to die to do it. Son of a bitch took the easy way out.

Imagine not having to deal with any more prison bullshit, throwing off the correctional coil but still being able to reach out from the grave and put your thumb in the prosecutor’s eye. The whole setup is appealing to me right now as I toss another post-conviction loss onto my stack of legal papers and wipe small puddles from under my lower lids. It’s hardly solace that I’m not alone in losing appeals so often.

Because there are so many disparate systems in the larger criminal justice system, it’s hard to get an overall success rate in criminal appeals so very few try. The last time the Bureau of Justice Statistics examined this issue was 12 years ago [2001]. Researchers narrowed and examined the Second Circuit Court of Appeals and found that the success rate for criminal appeals in federal courts in Connecticut and parts of New York was 3.87%.

Many circuits and jurisdictions don’t even keep official count of the number of times a defendant wins an appeal. I assume they think the number of winning appeals is so small that it’s pointless to survey it.

Most people assume that appellants like me lose because our arguments are meritless but the history of exonerations in the country proves otherwise.

hearse-3
One car for every criminal appeal winner in the United States. That’s what, eleven people?

Indeed, the Innocence Project, the organization started by former OJ Simpson Dream Team lawyer Barry Scheck to address the issue of wrongful convictions, a group responsible for many exonerations, won’t even review a case until all appeals have been exhausted. And they can’t take my case because there’s no DNA involved. The people who are lucky enough to be wrongfully convicted of being the architect of a crime scene with some human drippings on it qualify for greater scrutiny by higher courts – and more assistance – than I ever will.

And those people prove that too many people lose their appeals undeservingly. A study of the first 250 people to clear their names through DNA testing found that 90% of them had lost all of their appeals. Two-hundred and sixty more were exonerated only after prosecutors and pardon boards intervened after they exhausted all of their post-conviction review. Courts are really bad at correcting their own mistakes. Someone else needs to do it. And I’m not even allowed to try.

The purpose of judicial review – the process of having a higher court examine a lower court’s decisions – is two-fold. It’s supposed to correct injustice but also serve as a disciplinary force on trial courts. Judges and prosecutors are supposed to fear being overturned so much that they exercise extreme caution with every decision they make.

If the chances of being overturned are so small it’s close to zero, then there’s no incentive for judges and prosecutors to work to assure a fair trial to defendants. In a system designed to deliver proper consequences for people’s behavior, there are virtually no consequence for judicial error or prosecutorial misconduct, two events that are the best predictors of wrongful conviction. Along with an attorney who tells the jury to convict you because there’s “no reasonable doubt.”

The body of Justice Antonin Scalia arrives at the Supreme Court in Washington, Friday, Feb. 19, 2016. Thousands of mourners will pay their respects Friday for Justice Antonin Scalia as his casket rests in the Great Hall of the Supreme Court, where he spent nearly three decades as one of its most influential members. (AP Photo/Alex Brandon)

And when that wrongful conviction appears in a reviewing court, an appellate system that favors finality over accuracy takes over and leaves me sitting in here, with a roommate who has no teeth yet uses up all of my toothpaste.

Of course, wholesale overturning of criminal convictions isn’t good either. One of the reasons why appellate courts are so stingy with reversals is that judges – and the public – fear freeing a guilty person on a technicality.

But very few people get off on a technicality because few people get off. Even so, it’s a margin of error that may be the price of keeping innocent people out of prison. Which is more unappealing, courts where guilty defendants walk free after catchy phrasing like “if it does not fit, you must acquit”?

Or courts that send innocent people to prison and won’t reverse unless you’re in a hearse?

hearse4 I swear…you’re gonna be sick of winning.

THREE IDEAS IN CRIMINAL JUSTICE FROM JUNE 12 – 18, 2017

threeverdicts

This was a big week for crime.  The President is now supposedly under criminal investigation. Five Flint, Michigan administrators were arrested and charged with involuntary manslaughter. And three (more like two-and a half) criminal verdicts came down between Friday and Saturday.

Verdict: Not Guilty. Jeronimo Yanez, the Minnesota police officer who fatally shot Philando Castile during a traffic stop last summer, was acquitted of second-degree manslaughter. People are outraged and I can’t say I’m not either. If Yanez had been charged with murder, I think that would have been overkill. But second degree manslaughter is low-hanging fruit for prosecutors. All they had to prove was that Yanez “created an unreasonable risk, and consciously [took] chances of causing death or great bodily harm to another.” I think pumping bullets into anyone by intentionally discharging a firearm counts as second-degree manslaughter in Minnesota. Plus, Yanez’ defense – he “did what he had to do” – is something I used to hear from inmates all the time when they did something indefensible.

Verdict: Guilty. Michelle Carter was convicted of first degree manslaughter for cheering on her boyfriend via text as he was taking his own life. Philosophical debates have sprung up about suicide, choice, personal autonomy but I don’t think this case is really about any of that. Carter’s main defense wasn’t that she didn’t send the texts, but that she was involuntarily intoxicated by the anti-depressants she was taking. This was a bench trial, not a jury trial, so it was a judge who rejected the idea  that psychotropic medication can cause crime. Rather than worrying about whether encouraging someone to take their own lives is a crime, we need to worry about the precedent established here that’s even more damaging:  the judge’s decision didn’t acknowledge the very real contribution that psych meds make to the number of names on criminal dockets.

Verdict: We don’t know what we’re doing. The jury hearing the case against former entertainer Bill Cosby in Norristown, Pennsylvania deadlocked a couple of times and the judge there wasn’t having it and sent them back to deliberate, all while refusing to let them review certain evidence. Near the end of deliberations, a note that asked “What is the definition of reasonable doubt?” was sent out by the jury.  If they had to ask (the definition of reasonable doubt is routinely included in jury instructions), then it was time to acquit or declare a hung jury. Only when the judge sent jurors back in for more deliberation on a Saturday, the day before Father’s Day, did the real verdict come out: Fuck you, judge. We’re not staying here another day. A judgment of mistrial was entered moments later.

 

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
27 March 2017

Suit Up

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

imageedit_1_5552177160It must have seemed like a riot of sorts.

At the time, inmates were filing federal lawsuits at a rate thirty-five times higher than the general population – 25 per 1000 prisoners, according to the Administrative Office of the United States Courts. Now that 2.2 million people inhabit United States prisons and jails, 550,000 federal lawsuits would be filed every year if prisoners had maintained that pace.  Assuming a 250-day work year and a seven-hour workday, that amounts to 2200 prisoner claims filed every day, 314 every business hour, if that rate continued today.

blkbudgetBut the year was 1996 and their two-year old “Contract with America” obligated Republicans in Washington to produce a big change, especially since a budget impasse had caused a federal government shutdown.  Congress sought to seal up the outpouring of prisoner-initiated civil actions. The Prison Litigation Reform Act (PLRA), part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, the law that broke open the budget bottleneck, was passed in April of that year. Unsurprisingly, every year since then, the rate of inmate litigation has declined.

The PLRA’s purpose was litigation reduction, a not so ignoble goal. One rule of criminal justice, and of prison life, is that stupid, selfish sociopaths will endanger any benefit bestowed on a general population, even if it causes authorities to yank that support for them, too.   That is what the PLRA did; it basically eliminated an inmate’s ability to file civil claims unfettered after courts heard such cases as the suit seeking money damages for cruel and unusual punishment when an inmate ordered two jars of creamy peanut butter from the commissary but received one creamy and one chunky. When Congress needed to display austerity in the most ostentatious way, their scissors flashed across these gross examples of frivolity.  This isn’t brilliant analysis on my part; the Supreme Court of the United States admitted as much in their decision in Porter v. Nussle.

Federal litigation is usually the only way for someone who’s incarcerated to sue at all. You can’t really sue the state for tortious conduct because of the various types of immunity. They don’t have immunity in federal court when you claim that the state’s violated your civil rights. So they only forum where an inmate has an inkling of a chance is the one that’s almost impossible for him to reach.

clintoncnn
The PLRA is their fault. Really.

Complaints from prisoners – whether they’re lawsuits, those essential grievances that have to be exhausted before someone can file a lawsuit, or just general gripes issued through gritted teeth –  are the thermometer of a facility; the docket is the best way to see what’s really happening in there without going inside, even if half the allegations aren’t fully evidenced. If you have a number of suits alleging a guard is being abusive, then either he is shitting on the inmates or he’s been made a soft target and a rumor has circulated that someone can get money from litigation; either way, it warrants an investigation.

Inmates who are serious enough about their beefs to get paperwork together and mail it to a proper federal clerk are probably telling the truth. Discouraging them means by making it harder for a prisoner to complain  you don’t care to know what’s happening inside. The PLRA basically told every inmate: “We don’t give a fuck what they do to you.”

And they do to us. A Texas inmate lost his leg in a grain reaper when a guard failed to supervise him properly in his work assignment. Undoubtedly, this prisoner has a meritorious claim, but it’s almost impossible for him to file it. After the surgery to sew up the wound on his severed limb, he lived in such extreme heat that it’s killed eleven prisoners. It’s going to be hard for them to get relief through the courts, so no one will know the figurative or the actual temperature in there. People will continue to be maimed and killed. The PLRA is one of the most effective – and cold-hearted – silencings there will ever be.

If we can change the way our complaints are viewed, having others views them as input rather than as requests for output, someone might see the sociological and epidemiological value of litigation, even papers smeared with peanut butter-type foolishness, to see what’s happening in prisons. The PLRA only reinforces this antiquated thinking of the criminal justice system – the idea that every complaint is a declaration of war, where one party is wrong, another right, and one must be punished and the other walk away the victor.

Debt-Lawsuit
You are cordially invited…to clean up this mess you made.

The complaint against a defendant in a criminal case isn’t called that. It’s called an “information” because that’s what it provides to everyone involved in the case: data so they can do something about what happened.  In theory, prosecutors, victims, perps, defense attorneys and judges are supposed to come up with the best, least restrictive solution to the problem of one person’s lawbreaking. But because criminal court dockets are flooded with too many cases – a riot of sorts – we just default to prison at every opportunity for solutions.

Viewed properly, complaints – even lawsuits – are just openers for dialogue, invitations for exchange. If we viewed them that way, like the old AA adage goes, as “descriptions, not indictments” we’d have even fewer prisoner lawsuits, because we would have less cause for them.  Isn’t that the best court policy we could have? It would be like effecting tort reform because fewer people were harmed, got in fewer accidents, fell less often. Isn’t that what we want? Sometimes it seems like we prefer that people keep suffering so we can keep our courthouses open. And shut out prisoners in a new and different way.

THREE IDEAS IN CRIMINAL JUSTICE FROM MARCH 20 – 26, 2017

04execute_xp-master768

Inmates say they’re getting beaten and harassed in the aftermath of the uprising at the James T. Vaughn Correctional Center in Smyrna, Delaware on February 1st, when Sergeant Steven Floyd was killed. I’m sure many of the inmates who are being victimized had nothing to do with the commotion but this is becoming unfortunately familiar coda to preventable prison riots. A few bad apples cause a stir and everyone in the facility gets pummeled for it. It’s almost as if the National Guard or another military force should take these prisons over after these incidents so that the staff who’s been harmed/embarrassed/caught doesn’t have access to inmates while they’re still hot under their badges.

The state of Arkansas is in a rush to execute eight men on death row (pictured above) by the end of April, when one of the ingredients of the state’s fatal execution cocktail will expire.  They are recruiting (drafting?) witnesses to the execution from places as odd as Rotary Clubs because they have a statutory requirement: six to twelve people have to witness every execution for it to go down legally. Not sure how to think of this, asking people to be like acting like notary publics for killings. It’s distasteful but it might effect a policy shift ,seeing that there aren’t too many takers, even though the state of Arkansas is supposedly pro-death penalty. Almost no one wants to act as a witness to what they supposedly support.

And if you like Neil Gorsuch, Trump’s SCOTUS nominee who sat through days of confirmation hearing testimony last week, because you think he might be okay on criminal justice issues because he’s been a little bit fair with his Fourth Amendment (right to be free from unreasonable search and seizure) decisions, read what Stanford Law Review says about his stance on my favorite amendment, the Big Sixth, the right to effective assistance of counsel. The article is a little wonky (written by law students who are unaccustomed to explaining legal concepts in lay terms.  Here’s one that explains more but is a little older  Gorusch ain’t good.

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
27 February 2017

Ye Who Enter Courtroom A

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

image

I sat in court limbo, waiting for my attorney, in those clackety, chocolate-colored wooden chairs that weigh about 50 pounds each. The New Haven courthouse’s historic preservation prevented the installation of the sinners’ pews in more modern courthouses. Of course, the chairs, like their inhabitants, were flawed. Ecru lines, scrapes, and scratches ran up and down the legs, on the sides of seats, either because of the violence of a defendant or the carelessness of a marshal who had to align them each night for the morning,  all facing a blank wall because the bench and the parties are off to the left in this dogleg room, an L-hole,  that was never designed to accommodate growing ranks of the criminally accused.

By the time I got there the chairs were already screwed up. Tilt here. Moved to another row there. Nothing wild but defendants making sure to deposit some disorder before left the courthouse.  It made my rectitude even harder in those high-backed chairs.  I didn’t bother turning mine so I was slanted toward a public defender  – one whose real-life friendship with Attorney Betty Anne Waters played out in matinees in the movie Conviction, the story of a woman who went to law school with the sole goal of freeing her innocent, wrongly incarcerated brother – urge her client to admit violating her probation.

image
Click to enlarge Hell.

Her client had failed to pay restitution, even though the defendant couldn’t afford to pay it as she subsisted only on Social Security disability checks. If this defendant had taken her public defender’s advice, all the money she had received and lived on would have been considered an ‘overpayment’ that she needed to pay back. From representing people in this situation myself, I knew how the Social Security Administration gets overpayments paid back: they let the beneficiary collect disability in legal status only; every check gets reversed to the government. On paper, you look like you’re receiving benefits – and become ineligible for other entitlements – but you’re not getting the actual benefits. You get no money from any source. You’re unable to live because your checks are held until you pay back all you owe.

This lawyer was setting her client up to be liable for restitution on two fronts when she hadn’t been able to keep up payments on one front. That’s why she was in the courtroom that day. The attorney, in defending a client who was unable to afford her restitution orders, essentially doubled what she owed. It made no sense. It was typical. Abandon all hope, ye who need counsel.

I can ask my gynecologist about an earache. She’ll refer me to an otolaryngologist eventually, but before I leave her office, she will tickle in the inside of my ear with one of those black cones to see how serious my problem is before she’s done with me to make sure I’m not a walking emergency. She can do this because the practice of medicine requires baseline competence. The practice of law doesn’t.

Public defenders don’t take the time to understand the administrative law that governs the collateral consequences of the convictions they shove their clients into. As criminal defense counsel, they think they’re specialists who deal with only one type of problem. What they don’t get is that specialists are just general practitioners with more training; doing criminal defense doesn’t excuse you from knowing about other policies, especially when working with an indigent population whose lives are affected by administrative law (health benefits, entitlements), civil law (lawsuits), family law (termination of parental rights) and probate law (mental competence).

Suddenly the court had to adjourn, probably because the courtroom marshals were needed in lockup for an emergency or something so the client didn’t get to admit to anything.  I walked right up to the public defender as she headed for the courtroom exit, her arms loaded to her chin with folders of cases she had already handled that day.

image
Public defenders would fit in in Circle Eight for the Fraudulent.

“Listen. Don’t let her take that deal,” I said and pointed back to the bench she just stood before to double her client’s debt. “She’ll lose her disability to an overpayment. You know overpayments? She won’t get any cash for months. Even years. Are you not going to use Bearden v. Georgia [the Supreme Court case]? It says she can’t violate her probation or a restitution order if she didn’t have enough money to pay it,” I explained to the attorney.

“Who are you?” the attorney asked me, a reasonable question. She saw me come over from defendants’ purgatory and my situation markedly reduced my credibility so I didn’t know how to respond, how to justify why a criminal defendant could give sound advice to a licensed attorney.

I dont know how Dante Alighieri thought all of the levels of hell could be limited to 9. There’s at least one more depth, a special place for the prideful.  People who insist on showing off all they know – people like me – endure there in the Tenth Circle. They’re filled with knowledge but the power to use it is stripped of them. They chase after people with almost no knowledge who have all the power. The educated people, because they’re powerless, can’t convince the people with power to do things differently, can’t teach them anything.  The Tenth Circle is powerless omniscience running after ignorant omnipotence and it’s torture. This is the only time in my life I’ll be a 10 and stay one for good.

image
The other circles have all the fun.

Souls in circles one through nine have all the fun pushing boulders back and forth, standing against gale-force winds and other punishing games. My penance is never seeing a public defender take into account the multi-faceted problems that their clients face. Not once. I’m in the last, forgotten circle of hell watching this unfold every time I go to court, knowing how much people lose when they’re supposed to be protected.

“I’m nobody. But I know what I’m talking about,” I explained to the lawyer.  She nodded, backed into one of the wooden doors with her hip to open it and walked into the hallway, the Ninth Circle, icy lake of Treacherers, to locate another client who wouldn’t have a meddling wannabe like me monitoring her proceedings, achieving nothing.

THREE IDEAS IN CRIMINAL JUSTICE REFORM FROM FEBRUARY 20 – 26, 2017

prisons-usa

As of Thursday, the federal government will start using private prisons again. Attorney General Jeff Sessions became the Wayne to former Assistant Attorney General Sally Yates’ Garth after she called “Car” and moved the private prison contest to the side of the beltway when the Department of Justice decided last year not to pursue any more contracts with private management companies. Game on. Party time…Excellent for these businesses on the NYSE.

Novelist Michael Patterson took an Alford Plea – meaning he maintained his innocence but conceded that the prosecution had enough evidence to convict him of killing his wife – to a charge of manslaughter in Durham, North Carolina on Friday. His murder conviction was overturned in 2011.  Peterson said making an Alford plea in the death of his wife 16 years ago is one of the most difficult things he’s ever done because he gave up the fight. I know the feeling because I’ve done it myself. It’s the classic choice between being right or being effective.  Why is that even a decision that has to be made when we’re talking about justice or someone’s untimely death? It shouldn’t be.

On Wednesday, the U.S. Supreme Court sided 6-2 with Duane Buck , a Texas death row inmate whose own expert witness told jurors that Buck would be more dangerous in and out of prison because he was black.  This constituted “ineffective assistance of counsel,” according Chief Justice Roberts in Buck v. Davis. “The law punishes people for what they do, not who they are,” he wrote. Justices Thomas and Alito dissented – shocker. In some ways, this is huge victory because courts almost never find that a defendant received ineffective assistance from an attorney. In other ways, it’s a tragedy.  Duane Buck had to go all the way to the Supreme Court to get a court to say that you were harmed when your attorney hires and calls an expert witness who testifies why you should get the death penalty. It seems like a lower court should have said this earlier.

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
20 June 2016

Lawless America

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

22791843 - homeless man with winter coat on beach in summer

Only someone who’s mentally ill wears two sets of thermal underwear, two sweatshirts on July 6th, I thought, like the homeless people you see wearing puffy parkas during heatwaves.

I looked down at my body, which was covered in two sets of thermal underwear and two sweatshirts on the day before July 7th. My court appearance had been continued so marshals brought me back to the central lock-up early and I was sitting, freezing, in the basement of the New Haven Police Department.

lawless_america_movie_logo_infant_tshirtMarshals brought in a woman – 50’s I guess, not polished – who had been arraigned within the last hour wearing black T-shirt with  “LAWLESS AMERICA” in that high-alert shade of yellow. Apparently there’s some movie about judicial corruption and the producer is touring the country, promoting the film and riling people up and he was in Connecticut on July 6th. One of his acolytes got arrested, when she was decorated with probably the worst apparel you can wear in front of a judge in a criminal case, something labeling you lawless in a court of law. She was being held on a lowball bond.

It’s a special, secret club of people who understand how corrupt and wrong the judges are and how little defense attorneys do for their clients. And the only admission to this exclusive league of people is being charged with or convicted of a crime. It’s a perfect set-up for sustainable corruption; the only people who know the truth have diminished credibility.

imageOnly members of the club like me know that a $50 bond or other low amount is a judicial screw-job. Obviously, if a $50 bounty was appropriate, then the person isn’t dangerous or charged with something serious, otherwise it’d be higher. If a defendant is low-risk enough to justify a $50 bond, then it’s all the same to release her on a promise to appear. Most people know someone who can post $50 in bail for them but, once that bond is set, the defendant can’t call anyone until she reaches the prison. There’s no phone in lockup or the courthouse that she’s allowed to use. As low as it is, a $50 bond guarantees you’ll see the inside of a correctional facility at least for a few minutes and no one can accuse the judge of being unreasonable or abusing his discretion. It’s only $50.

Lady Lawless was becoming increasingly agitated at her predicament, almost to the point of inviting medical sedation. She thought that arguing the facts to the marshals – that the Judicial Review Council in Connecticut co-signs outrageous behavior by the state’s jurists, that they trample people’s rights all the time in favor of corporations or the state. She sounded paranoid, looked deranged. And I’ve made the same claims she did at one point or another, almost verbatim. I wonder what I looked like.

belly“I am an educated person. I should not be shackled!” she went on to the marshals who prepared her for transport back to York.

Trust me, not gonna work, I thought.

All of us knew that, if her antics escalated, the marshals would likely admit her to a local psych ward  – where, incidentally, she could make a phone call to someone to post her bond – and their procedures would delay our trip back to prison. Our homecoming can be delayed as long as four hours when an inmate gets hospitalized from lockup. Instead of getting back to the prison at 9 PM, we’d get in around 1 AM, after being on the trip since 7:30 AM the day before. No one wanted that, but Lady Lawless persisted.

“You can’t shackle me! I’m the victim of a sexual assault! Don’t you understand? Can’t anyone help me?” she shrieked.

Index fingers of other inmates shot off in my direction.

“Can you help me?” she begged, sobbing so hard that help became a two-syllable word. The arms underneath her T-shirt were goose-bumped because she had dressed appropriately for a summer day.

“No,” I said. I wish I had more comforting words but I had nothing. I felt sympathy for her but it was like sympathy-lite. I am so worn down by these events where someone is in distress and no one is doing – can do – anything of any effect to help her.

New-Picture-110She started to struggle against the marshals who were trying to shackle her while she was standing which is rare because it’s too easy for an inmate to boot them in their faces when they do that. It’s much easier for the inmate and safer for the staff if she sits in a chair and extends her legs, but Lady Lawless was protester, a stand-up lady, and wouldn’t sit down.

Sounded one 23 year-old inmate with a shock of pink hair:

“Let them put them irons on.  We’re all victims of sexual assault so SHUT THE FUCK UP!”

Watching women behave inside the razor wire tells me that none of the statistics connecting childhood sexual abuse and crime are lying. Mass incarceration is just a round-up of victims of some type of abuse or neglect. When you see victims in the paradigm of powerlessness so many times, they start to annoy you.

Intellectually, I knew she was understandably scared like I was and that injustice was laced throughout whatever just happened to Lady Lawless somehow. It’s possible that the judge who arraigned her had little sympathy for anyone but more likely he/she didn’t like the fact that he/she was included in the system Lady was protesting. I don’t understand how a person who gets charged in protesting judicial corruption can get a fair hearing since no one can preside over it except the people she’s accusing of malfeasance. Her case is corruption incarnate.

14309864_mlEven knowing that,  I was pissed at her that she had been victimized, either in the past or a few hours ago in a court of law. If she had just done something else different, I’m sure that she wouldn’t have been here, asking me for something I don’t have and can’t do. The way we blame victims – Well, hon, if things had been different, they wouldn’t be the same – that’s our real lawless America.

“Can’t you do something? I wanna get back,” Pink Hair asked me.

“What can I do?” I asked back, pointing down to my shackles and raising my wrists, criss-crossed in a belly chain.

“She wouldn’t be here if she hadn’t worn that shirt. Might have had a chance if she wore something else,” I lied to them. And to myself.

THREE IDEAS IN CRIMINAL JUSTICE REFORM FROM JUNE 13 – 19, 2016

victims-pulse-orlando-shooting

The mass shooting at Pulse nightclub in Orlando filled crime-policy wonks’ inboxes with more unanswerable questions. They have to decide whether we should ban certain guns. They have to decide whether shooter Omar Mateen was mentally ill and what could have been done about it. They have to decide whether the FBI knows what the hell is going on. They have to decide what the death toll needs to be to trigger real discussion about how to prevent these tragedies. I’d be interested in knowing in how many people wouldn’t be locked up if we had banned guns altogether, years ago.

‘Tis the season. Three inmates escaped – one in Arkansas and two in Nebraska – to much less fanfare than the Dannemora escape and manhunt for David Sweat and Richard Matt that was ongoing at this time last year. Earlier this month, the New York Inspector General issued a report blaming New York correctional staff for the escape last year.  Already prison staff is in the crosshairs in the Nebraska escape.  And prison staff should be in a jam in Arkansas where a man convicted of murder and sentenced to 60 years was assigned to an off-prison grounds job. Usually, high security inmates aren’t assigned to these jobs because of the risk of escape. My take? Huge screw-ups by staff in all three states. That’s what prison breaks are: magnification of C/O mistakes.

Think tank In the Public Interest released a study on Thursday with statistics showing that recidivism among people who discharge from private prisons is higher than the rate for people who come home from government-run prisons. This is newsworthy because for a long time no one had any data that indicated that privatization can threaten public safety.

 

 

 

 

 

 

 

 

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
22 February 2016

Dude…Where’s My Appeal?

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

 

image

“Dude, you make NO SENSE,” I said to a stack of papers.

“Who are you talking to?” my new cellmate, Chloe, asked. Chloe’s here for slashing two pregnant women with a boxcutter in a supermarket parking lot after they yelled at her to slow down when she sped by them. Between that and the fact that she had already regaled me with a story about how she does charity work in bikini carwashes, I knew she wasn’t the Supreme Court opinion-reading type.

“Scalia.”image

“What the fuck is that?”

“The Supreme Court.”

“Umm.”

I’ve tried so many times to represent myself in my appeals because I refuse to pay another attorney. But the courts keep forcing these lazy fools to represent me. I thought I had an absolute right to represent myself – even though I lost my first appeal on that ground – but I just found out I don’t. Martinez v. Court of Appeal of California, Fourth Appellate District says no one has a right to defend herself in a criminal appeal because, once the presumption of innocence flees the scene, she has no right to effective assistance from a lawyer.

The Court’s reasoning is ridiculous, of course, and conflicts with many other cases on the assistance of counsel in post-conviction proceedings.

imageI looked down at the bottom of the decision where the dissents and concurrences hang. Usually I can find some solace in there, some straight-thinking in a decision that doesn’t help me. But no. Justice Antonin “Nino” Scalia, in a concurring opinion (meaning he agreed with the vote but for a different reason) said that no one had a right to effective assistance in a criminal appeal because the Constitution doesn’t guarantee an appeal in a criminal case.

Scalia wouldn’t even get to write such a load of shit if Mr. Martinez hadn’t filed a criminal appeal. The only way to get to Scalia and the other justices in a criminal case is through an appeal. Unless it’s an original action but not too many criminals are original. If no one has a constitutional right to appeal a criminal conviction, then why the hell is the Supreme Court issuing opinions on criminal law, especially ones that tether me to some idiot appointed counsel? The highest court in the country makes no sense.

imageIt wasn’t the first time, either, that Scalia went screwy on me.

In 1989, in Houston v. Lack, the Supreme Court established the “prison mailbox rule” – a law that held that when prisoners need to file papers with the court, those papers are deemed filed in court on the day they are delivered to prison authorities for mailing, i.e. in the prison mailbox, not the day they arrive in court.

The prison mailbox rule saved my ass many times when I was allowed to represent myself. I’m sure it will again, too.

The majority of the Houston Court acknowlegdged that prisons might have very good reason to want to delay an inmate’s mail, particularly if the papers to be filed were part of an case claiming that the prison did something wrong. Inmates would miss every deadline to file anything.

imageI wasn’t suing the prison but they figured I would someday so they’ve been futzing with my mail ever since the delusion popped into their heads. Mostly everything I file in the appeals where I represent myself arrives at the courthouse clerk’s office three weeks late. Houston v. Lack never lacked relief for me.

I flipped to the end of the Houston decision, too, when I read it, just to see who would find a reason to hold a prisoner accountable for the actions of prison staff, even if that meant they couldn’t adequately defend an appeal of their convictions.

imageNino again.

Scalia voted against the prison mailbox rule but he admitted that “the Court’s rule [made] a good deal of sense.” Yet, because the rule wasn’t created by Congress, it wasn’t constitutional.

My lesson from Supreme Court jurisprudence is clear: the law and the way things should be don’t always work together. In fact, the law is often an inadequate contender in the fight for sensible justice. To achieve what we call justice, we betray one of its most basic principles which is to do what’s fair.

I would’ve expected a truth like that to rankle a prisoner. But when you’re an inmate, your time in prison gets a lot easier if you can accept inbuilt injustice, and not because the acceptance should quiet the fight within you. When you learn that it’s not just you; sometimes the system is inadequate, too, you understand that fuck-ups aren’t avoidable for anyone, not even the thousands of lawyers, judges, jurors, clerks and others who are the cogs of the machine.

imageThe fact that a Supreme Court Justice – albeit obliquely – acknowledged an inherent problem in the system that even he couldn’t fix – that a sensible law could be illegal – made me feel a bit better. In that respect, Scalia was as powerless in creating justice in the Mount Olympus of the Supreme Court as I am as a prisoner in a maximum security facility for women. The law proceeds senselessly without the judge and the judged.

Even if – especially if – they make no sense, the Supreme Court, the nine people at the top of this judicial heap, is a lot like us inmates down at the bottom. None of us gets it right all of the time.

THREE IDEAS IN CRIMINAL JUSTICE FROM FEBRUARY 15 – 21, 2016

Kerik-jail

FBI v. Apple is the big story in legal searches and privacy rights because the FBI can’t hack into the iPhone of the San Bernardino terrorists. Does the FBI realize that this whole fight is admission that two murderous nutcases are smarter and more cagey than they are?

Former head of the NYPD and NYC Corrections, Bernie Kerik, is talking’ trash to the Senate. Kerik sent a letter to Senator Tom Cotton about an essay the senator published on Medium.com that called criminal justice reform “criminal leniency.” I don’t know about you but I don’t care if reform entails leniency as long as it works.  Read the letter; it’s a Bern everyone can feel.

There are at least 6 proven strategies for reducing crime and violence without gun control, according to German Lopez, a reporter at vox.com who actually took the time to ask criminologists for evidence of what works in crime reduction. We’re only using one of them. Sort of.

And one other thing: on Friday, February 19, 2016, Albert Woodfox, one of the “Angola Three” – three inmates accused (and convicted and cleared and accused and convicted and cleared) of killing correction officer Brent Miller in 1972 – was released from prison, directly from more than four decades in solitary confinement to the streets, one of the worst things you can do for a prisoner who’s headed home.

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
1 February 2016

Lawyering Down

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
Dick+Wolf+Law+Order+20th+Season+Kickoff+Celebration+Md-orarvwMKl
Yeah. You.

I want to sue Dick Wolf.

Even if Dick’s name isn’t a household regular, his various Law and Order permutations:  regular, Special Victims Unit and Criminal Intent are, along with the “Clung Clung” that sets off every episode.

The creator of the long-standing “ripped from the headlines” drama series did a devastating disservice to my – and the public’s – understanding  of the criminal defense attorney.  All of Dick’s defense counsel characters are so zealous that they might piss off even the ACLU.

If Dick Wolf ever descended to “the Tombs,” the underground dungeon of the NYPD’s Central Booking, where almost none of his perps ever go, he’d see that his firebrand defenders never existed; they are as fictitious as Shrek.

Close to twenty criminal defense lawyers have represented me, so I know their ways. Law and Order attorneys do five things that I have yet to witness at all. These are my stories, shortened, of course.  Clung Clung.

1.  MAINTAIN PRESENCE IN POLICE INTERROGATIONS

image

The only times I ever saw attorneys in police stations were when they were being arrested themselves.

But on Law and Order it seems like the Legal Aid Society sublets space from the cops.  A suspect asks for an attorney and one appears, one already familiar with the circumstances of the crime and loaded up with cites and statutes to thwart not only a conviction, but the suspect’s impending arrest.  Then they leave headquarters with their new clients in tow.

When a suspect in Connecticut invokes his Fifth and Sixth Amendment rights to shut up and lawyer up, a lawyer appears, but only after police have cuffed and charged his new client, slapped his ass with an obscene bond amount and scheduled his arraignment.  It’s true that all defendants get an attorney…just a couple of days later as they sit in jail.  But their new attorneys won’t know their clients’ names or the facts of their cases.  That knowledge develops months later, if at all.

This is usually the case with appointed counsel, but even high-priced attorneys refuse to sully their white shoes by entering a police barracks.  My father forked ten grand over to Attorney Skin; we expected him to accompany me to police headquarters with some countervailing evidence.

“I don’t deal with cops,” he told my father.

“Don’t lawyers have to deal with cops?” I asked my father when he relayed Attorney Skin’s message. It was my first time. What did I know?

Skin never needed to confront cops, I learned later.  When he said he didn’t deal with cops he meant that law enforcement, once charges are filed, leaves the scene; an arrest – not a conviction – closes an investigation.  When Detective Mike Logan (played by Chris Noth – he was my favorite) returns again and again to the district attorneys’ offices, continuing to search out the guilty party even after someone’s been arrested, and even goes head to head with defense attorneys, it’s dramatic construction, not real life.

When someone gives you advice that you shouldn’t talk to police, what that person’s really saying is that no lawyer will be there with you when they try to interrogate you or book you. You’re on your own.

2. KNOW FACTS OF CASES BETTER THAN THEIR CLIENTS

image

“But he wasn’t at the bodega at 1:45.  He’s on the tape sixteen minutes later.  He couldn’t have killed your vic.”  All of Law and Order’s defense attorneys lead off with a statement like this, directly to the police no less.  The client sits silent, dumbfounded.  He doesn’t even remember going to the bodega.

We had picked the jury.  My attorney, Eyes, rinsed the flopsweat that covered her after a pre-trial motion hearing (one in which she filed no motions, no objections, nothing).  The state was scheduled to start presenting evidence in fourteen hours when she called me, advising against trial.

“I just don’t see how you’re going to beat this assault charge,” Attorney Eyes told me.

“But…I’m not charged with assault.  This is an identity theft case.”

“Oh?”

Apparently Attorney Eyes never read any police reports in my case, ever.  Oh?  Oh no.

3. ARM THEMSELVES WITH WELL-RESEARCHED LEGAL MEMORANDA

image

Criminal cases are not as paper-bound as civil litigation; aside from the charging documents and the defense attorney’s appearance form, no one files anything in the typical criminal case in Connecticut.  Instead, they negotiate.

Dick Wolf’s legal warriors use reams of paper for all of the briefs they write, even hand-deliver the papers they file, briefs backed with the old school cerulean blue linen cover.  Reality’s criminal defense attorneys don’t fight by filing, mostly because they don’t fight at all.

It’s standard practice for an incarcerated defendant who must go to court every day for trial to request that the judge order special transportation, a setup whereby she bypasses the herds of inmates going to court because one correction officer drives her to the courthouse and back to the prison directly.  That way, the detained defendant need not log hours in judicial limbo – “lock up” we call it – where her attorney has no access to her.

“Did you file the motion for special transport,” I asked my trial attorney, Mouth.

“I can’t.  That would be special treatment,” came from Mouth’s mouth.

“It’s not special treatment.  Everyone I know who had a trial had a C/O escort, driven directly in to court and then right back to Niantic.”

“But I don’t want you to be treated specially.”

“Who the fuck do you represent?  Is this one of your nutso strategies?” I gave the universal sign for quotation marks in the air. “If so, explain it.”

She refused to file a motion for me to get the special transport that every other inmate who’s attending a trial gets.  But I still did get special treatment; it was just worse than everyone else in my situation.

When it came time to file a Motion for Acquittal, a written motion that can win a trial decisively for a defendant by outlining the state’s case’s deficiencies, Mouth had no papers with her.  Instead she made a rambling oral argument that there were different theories of the case (there were not).  Dueling theories is not a valid ground for acquittal.  Judge Jon C. Blue saw Mouth spewing garbage and he waved at her to stop, to sew it up.

But Mouth didn’t clam up. Instead, she and Judge Blue went a full ten rounds over whether her use of the word “gypped” – slang for ‘swindled’ and  derived from the word “gypsy,” a wandering person, possibly from India with dark skin and black hair – was a racial slur.  Mouth defended the use of “gyp” valiantly for several minutes, making Judge Blue red in the face. He denied the oral motion for acquittal.

Do I need to say that Mouth gypped me?  Dick Wolf never lets his legion of lawyers gyp any of their clients.

4. BACK THEIR CLIENTS 100%

image

Every attorney on Law and Order attends closely to his client, wrapping an arm around her to listen carefully, nodding in agreement.  Then defense counsel addresses the court based on what his client just said to him.

When my family retained Attorney Ears to represent me in a sentence modification, I detailed the facts that he needed to present to the court.  Ears nodded like he was auditioning for Law and Order but when it came time to argue before the judge, he swerved and told the judge that I take “total responsibility” for the crimes when I clearly do not.  Ears never listened to a word I said.

5. LIFT EVERY ROCK TO FIND ALL NECESSARY WITNESSES

image

Dick Wolf’s cache of counselors is never short of bombshells.  They produce the defendant’s wife and dun her until she admits that she framed her husband.  Expert witnesses with knowledge of arcane neurological facts or psychobiology always the stand to clear names.  At the last minute they find the lone alibi witness.  It’s nice representation if you can get it but you can’t in the real world.

The court appointed Nose to represent me in a technically complex jury tampering case.  I explained that I was on the phone with a caretaker of a man who I represented before Social Security when calls to jurors were made; the caretaker was an alibi witness for me.  Unsurprisingly the phone records for the telephone line I used for these calls were absent from the state’s discovery, not that Nose opened his mouth about that.

I directed Nose to where he could find the man and request a waiver for his medical records to find the note of my call to his caretaker in his file.

“His family moved,” Nose said with phony regret.  “I hired an investigator to find them and there’s no forwarding address.  They’re gone.”

This shocked me.  The late father of the family was a pillar of the North Haven community; it would be very unlike them to up and move like, well, gypsies.

I followed up myself months later.  The family never moved; they’ve lived in the same house for 45 years. If someone had contacted them in a timely fashion,  then the caretaker who made notes of the times of our calls would have been able to testify for me. Instead, he died.

And Nose never caught a whiff of himself to know that he was full of shit.

image
Jerry Orbach as defense counsel. He would later be cast as Detective Lenny Briscoe. See? Lawyers will switch sides on you.

If Dick Wolf has even a smidge of public concern, he’ll start creating defense attorney characters that reflect the poor representation that real-life defendants receive.  That would enable the public to understand how many erroneous convictions the judicial system manufactures every year with the help of its handymen: clay-footed, flesh-and-blood defense attorneys who, like my Skin, Eyes, Ears, Mouth and Nose, rarely make any sense.

THREE IDEAS IN CRIMINAL JUSTICE FROM JANUARY 25-31, 2016

df939f5b0b8e1864d2412504c7b75db4f93dead6

President Obama banned solitary confinement for juvenile offenders. It’s too bad there’s only 26 juvenile offenders in the entire federal prison system and even fewer of them are held in solitary confinement. Ultimately, Barack, you didn’t help that many people.

And, again, a prison employee takes a collar for assisting inmates with an escape. Nooshafarin Ravaghi, an English-as-a-Second-Language teacher at the Orange County Central Men’s Jail has been charged with assisting three inmates escape (all three are back in custody). Ravaghi will be arraigned on February 1, 2016; police and prosecutors plan to request a $500,000 bond, a little steep for a correctional ESL teacher. It’s a good thing she knows how jails operate.

Unabomber Ted Kaczynski’s life in prison is better than mine on the outside. It’s probably better than yours, too. This week Yahoo News published a five-part series on him and his life in the supermax which you can read here. Spoiler alert: Ted’s got skills with the ladies.

 

 

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
7 December 2015

Girl On Film

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

 

I was the star of the film, I suppose.

A DVD player in the courthouse played the recording made by the police when they arrested me. In my screen debut, I wore yellow pajamas as the cops barged through the front door of my parents’ home to apprehend me. Watching the video was like looking into a time-delayed mirror; I saw the police scare my reflection years before. In my movie role as culprit — an essentially non-speaking one — my only actions were to retreat and to surrender.

As the judge, the jury and my attorney scrutinized the police video, in my mind I reviewed another silent film, a sequel to the story told in law enforcement’s cinematography and a reel that only I had viewed. In this film, pant legs and boots met me at eye level, moving along the sidewalk. Surprise overtook my expression as I looked around because, without knowing or feeling it, I had fallen clear to the ground while I strode down Fifth Avenue in Manhattan. It wasn’t uneven concrete, a fainting spell or even drunkenness that felled me, it was my medication, my doctor’s remedy for what he thought to be severe mental illness because I continued to deny signing someone else’s name for a package. The interplay between these two reels was my real life for years.

The one time I was home when a package –  items ordered on a stolen credit card – arrived, the police had set up a sting operation in which they expected me to sign someone else’s name and accept the boxes.

The police promised everyone that their sting operation had been successful and they had the evidence to prove it: me, on tape, signing for the packages.

“I didn’t do it,” I stomped and swore to my parents, my lawyers, and anyone who would listen but no one bought it. Most people assume that the police never pursue people who are free from guilt but they do; they’re far from 100% precision. People maintain faith in the police because they must; law enforcement splits order and chaos, separates security and victimization, but the government’s error rate would frighten most citizens if they knew it. Defense attorneys know how flawed the criminal justice system is yet most of them still automatically look to psychiatry to explain their client’s actions to the courts, even before they investigate any evidence in the case.

“They have you on tape!” lawyers., doctors and my parents would shout. “Why would they lie about that?”

“Because…they lie!” I couldn’t answer their questions.

In my case, once a diagnosis of mental illness was in hand, no one, neither my lawyers nor my parents who paid their bills, conducted investigated any of the state’s allegations, not even to watch this damning videotape.

I sat as a spectator while friends dispersed like they never knew me, not even to ask “What happened?” or “Can you explain this?” Quite frankly, that abandonment caused me more panic and pressure than the specter of a prison sentence. So when the medical verdict came down, I was seduced by the idea that just a few pills could purge that pain. All I have to do is take a pink, round one and two long white ones for all of this pain to dissipate? Yeah—sign me up for bipolar disorder, I thought.

“Yeah, I’ll take the scripts,” I told the nurses.

Misdiagnoses often whirl out of control because, as mistakes, they prompt the wrong therapies; relief does not arrive when someone takes medication for an incorrect diagnosis, which is what happened to me. Because medications had no effect on a disorder that never resided in me, my illness appeared treatment-resistant. Soon, my bipolar diagnosis blossomed to a diagnosis of schizoaffective disorder which, in turn, bloomed into a misdiagnosis  of schizophrenia, the most devastating of the organic mental illnesses. A diagnosis of schizophrenia requires a patient to suffer from delusions; according to doctors, my delusion was my continued denial that the police caught me forging someone’s name on camera, not that any of them ever bothered to watch it.

Treatment for a misdiagnosis of schizophrenia is brutal. Mine included anti-psychotics medications like Risperdal that literally turned off my brain, loosened my lips to the point that I drooled and put me to sleep for twenty hours at a time.

Unlike my original misdiagnosis of bipolar disorder, the ensuing misdiagnoses for thought disorders and personality maladies met my disagreement immediately; I made feeble arguments against medications and particular assessments. When my reasoning failed to change the doctors’ minds, I exploded into expletive-filled tirades.

After my outbursts, my protests folded quickly because the medications tired me and weakened my usually sturdy spirit. I wept after each head shrinking session. Do they have me on tape? Did I do this? Am I totally outside of reality? I wondered. I doubted every thought that I had.

Unsurprisingly, I developed a severe case of clinical depression. The misdiagnoses further complicated my life because treatment for these disorders edged out the care I needed for the depression and other physical illnesses. No anti-depressants to lift my mood; they could make me manic. No Synthroid for my low thyroid function; if my metabolism thrived, it could drive me into hypomania, which is like madness-lite. The steroids I needed for the bleeding from ulcerative colitis? They make patients angry and aggressive, states unwanted for the delusional and disordered.

I will plead guilty to this: through my angry behavior, I was the person who damaged the most both my crusade for help and my campaign for a different diagnosis – and for anyone to look at the stinking tape. Each time I raised my voice, the numbers of my daily medications dialed higher, to 3, 5, 7, 12. Medications with side effects summoned other pills to blunt those effects. Those next pills delivered their own set of side effects that needed treatment by adding medication and so on. Eventually, when the original medication’s efficacy was canceled out by the pile-up of pills. I’m almost thankful for that.

With each additional prescription I felt worse and side effects intensified to dangerous extremes: lithium made me vomit without warning, I had seizures, lost ambulation, and experienced aphasia, unable to remember the word “trunk” when talking about my car. I took that spill in Manhattan, realizing I fell only when a pair of Prada loafers passed by my face.

The prosecutor had scattered bits of evidence around the courtroom. Ultimately,  years of my life had reduced themselves to the push of a button, the moment when the prosecutor pressed “play” to display one of two mutually exclusive truths on that video: either I signed for packages, which would support the labels of insanity and criminality that doctors and lawyers had pasted on me, or I did not.

Contrary to what the police claimed, the only thing I did on that tape was to look shocked and ask to speak to my father. No signatures at all. No forgeries. None. During the viewing, one cop testified that he deleted the entire audio component of the recording — exculpatory words that I needed to present to the jury to win the trial — because it was, in his words, “unclear.”

The only aspect of the tape that was unclear was whether I should feel infuriated or freed by the video, a snippet of film that my life hinged on for years. I sensed some relief that I no longer needed to doubt myself but I’m pretty pissed that no one thought enough of me to view the central piece of evidence before putting me through years of medical and emotional strife.

Author’s note: I arrived at York Correctional Institution eight years ago today, on December 7, 2007.

barbed wire

 

 

THREE NEW IDEAS IN CRIMINAL JUSTICE REFORM FROM THE WEEK OF NOVEMBER 30-DECEMBER 6, 2015

Vice.com and the Marshall Project start a new series of articles by inmates called “Life Inside.” The first installment: Why It’s Hard to Be a Lifer Who’s Getting Out of Prison

A black man does not want to have “The Talk” with his children about police brutality because of the risk of putting a bad face on legitimate authority. Read his essay “Why I Refuse to Have ‘The Talk’ with My Black Son” from Politico Magazine.

A professor at the University of Wisconsin Law School has found that the progressive, “evidence-based practices” that are supposed to reduce prison populations without sacrificing public safety might turn reform in the wrong direction. The professor’s study and article, “The Promises and Perils of Evidence-Based Corrections” was published this week in the Notre Dame Law Review.

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
5 October 2015

OJ and Me, Unassisted

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

image

When your life and OJ Simpson’s ride the same rails, you know your life has gone off track.

imageThis month [May 2013], in two courtrooms separated by 20 states, both OJ and I took the witness stand as petitioners in habeas corpus cases –  to grab real Get-Out-of-Jail-Free cards. Both OJ and I think our juries did not acquit because our lawyers were not fit. In other words, our lawyers did such shitty jobs at our trials that we could have won if they had just done an average job.

Our appearances were all the more resonant because, fifty years ago this May, in the decision of Gideon v. Wainwright, the country’s highest court held that every criminal defendant has not only the right to an attorney but the right that the attorney perform right.

imageDuring any court proceeding, it’s hard enough to prove that something actually happened because the judge can take into account so many aspects of someone’s testimony:  bias, demeanor, background.  Habeas corpus petitioners scale an even higher obstacle because we have to prove that something that didn’t happen…but it would have happened…if the lawyers’ crappy performance at trial had not happened.  It’s like proving that, if things had been different, they wouldn’t be the same.  A habeas corpus case is a cinch and an impossibility at the same time. It’s almost impossible to cure a screw job from your attorney.

imageYou need a new lawyer to prosecute a claim of ineffective assistance counsel against your first attorney who didn’t do his job. Sometimes you need a third attorney to claim ineffective assistance by your habeas trial attorney. Getting effective assistance of counsel is like playing with those Russian stacking dolls and you are the tiniest one of all, locked in the middle, your freedom blocked by other people. For a long time, there were no bigger people to block OJ. I wonder how he feels now. Juice as the tiniest little gnome in the game.

image“These cases never win,” the marshal told me in the bump of an elevator ride the courthouse’s second floor where everyone was waiting for the star witness: me.

Wearing three sweatshirts to ward off the cold of lock-up and shackled with 18 inches of chain above laceless sneakers (the round, plastic tips of laces serve as makeshift handcuff keys and can pop open all of the hideous hardware inmates wear to court), I provided a very un-glamourous entrance. As opposed to a criminal trial, habeas proceedings are much less dramatic. No bombshell testimony or blood-stained accessories to try on.  No evidence in printed plastic bags sealed with official, colored tape.

Criminal trials at least pretend to be fair. Habeas proceedings? Not so much. Just to file a habeas, you have to be an inmate convicted of a crime. Your standing to start the whole affair is that you were the loser in the last proceeding. The whole thing sounds like a huge sour grapes story that the inmate tries to sell to the court so drunk with power from those same, sour, purple fruit that it can’t even listen anymore.images

I couldn’t watch full cable news coverage of OJ’s 2008 case like I did in 1994 and 1995 when he was charged with murdering Nicole Brown Simpson and Ron Goldman. All I know is that he was accused of robbing some sports memorabilia salesman’s hotel room, recapturing items that had been taken from him. He was found guilty on October 3, 2008, thirteen years to the day he was acquitted of the murders.

imageOJ is doing time now for the murders committed 18 years ago, not for any shenanigans in a cheap hotel room. People say that’s justice but it’s not.  A Vegas dust-up doesn’t warrant a thirty-year sentence. Justice would connect crime and consequence more closely to put someone in prison.

It might be karma for the Juice, or Moirai, or exactly what he paid for. When Karma locks you up and one of the Moirai is your warden, you might not have committed the crime, but you’re not innocent.

After I swore to tell the truth on the stand in my habeas trial, I did. I testified that I didn’t order anything on others’ credit cards, or sign their names but I realized, as I sat in the most comfortable chair that’s received my ass in more than five years and answered questions on direct examination, that I’m not innocent.

My hour on the witness stand wasn’t an opportune time for my mistakes to crystallize in my mind but it was then I realized just how badly I mistreated people, bullied some, totally disrespected my family. I was entitled, mean, oblivious to anyone’s interests but mine and I had chosen the wrong interests so I was stupid, too.  I don’t have enough paper to list out all the shitty things I’ve done that weren’t crimes.

imageAnd I was manipulative, too, convincing everyone and myself  that I was just some sweet kid, so kind that karma repaid me with this experience of explaining my innocence, of realizing just how long I had been off track, stuck at the station with more baggage than any railroad car could hold.

So I continued and explained why I, the tiniest gnome, couldn’t have been the five-foot, eight-inch tall woman flagging down the Fedex driver in the cul-de-sac. Talked about inverse karma:  how if one thing hadn’t happened (Attorney Angelica Papastavros’ horrid representation of me) then another thing (my convictions) wouldn’t have happened.  If I had been different, my life could have stayed the same.

Incarceration makes you question everything you’ve ever done or thought, even the good things, palpating every decision you’ve ever made to see where your life went off track. Rehabilitation is just honest re-evaluation and not much else.

I wonder how OJ is doing now, running inventory over his life. It might be easier for him. Sometimes crime is the cleaner way to live. You violate, you rehabilitate, you accelerate, back on track.

image

READER POLL

image

From E! Online.com: OJ Was Found Not Guilty of Murder Twenty Years Ago

OJ Simpson was found not guilty of murdering Nicole Brown Simpson and Ronald Goldman twenty years ago this weekend, on October 3, 1995.

Do you remember where you were when...

View Results

Loading ... Loading ...

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
16 March 2015

Bucket O’ Piss

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

 

photo (26)

“Don’t say anything too loud and talk like this,” Francine told me with her lips together, unmoving.

“Why?” I asked.

“Because we’re not alone.”

“There’s no one here but you and me, Francine.”

image
Shhhhhh…

“They’re over there,” she said and cocked her head in the direction of a patch of grass, empty except from a few geese.

“Who’s over there?” I asked her.

“Don’t move your lips!” she sounded through her closed mouth. “They’ll see what you’re saying.”

“Who? The geese?”

“No, the people who rigged up the camera and the recorder on the geese,” she pushed through her closed lips like a ventriloquist.

“Camera and recorder? What the hell are you talking about?”

She relaxed her lips to make a point. “People in my case –  and probably people in your case – have put cameras and listening devices around the geeses’ necks to spy on us in here, OK?”

“You mean that black and yellow tracking device? No, that’s to track and study their migration patterns, I’m sure. It’s like the Department of Agriculture or some local nonprofit who wants to see where…” I was explaining.

“It’s not! It’s recording our every move and sound!” she protested.

“OK, E.F. Hutton, I have to go. Is this what you wanted to talk to me about?” I was tiring quickly.

image
You’ve got mail.

“No. I wanted to warn you to look closely at your legal mail. They dipped mine in a bucket of piss.”

“A bucket of piss?” I asked. She exhausts me but Francine probably tires of our conversations too because I parrot everything she says back to her with a confused look. Geese? Cameras? Recorders? Bucket of piss?

“Yes. They’re literally dipping my legal documents in a bucket of their own piss. It’s harassment.”

“Well, thank God they’re not using our piss instead of their own. But how do you know it’s a bucket of piss? Maybe it’s a plate or even a shallow roasting pan.” I laughed hysterically at my own joke. Francine just stared at me.

“One staff member who I will not name confirmed to me that they have a large bucket of piss that they dip people’s legal mail in.”

Francine was neither lying nor mistaken, I’m certain a guard did tell her about a bucket of piss to soup up more persecutory delusions in her head.

“Confirmation of the bucket of piss, huh? Well, I hope they’re storing it in an appropriate place. Like the Hospitality classroom.” I started screaming laughing again.

image
ROLL CALL

“Look, all I’m trying to do is warn you.”

“I don’t even get all of my mail. Do you think it’s still soaking?” Hysterics.

“Forget I said anything,” she huffed and walked away.

Francine gives way too much credit to her persecutors. She accuses prosecutors and judges of accepting bribes to convict her. She claims correction officers are paid to harass her. I’m the only one who tells her the truth: they’ll do it for free.

I know for a fact that no Bucket o’ Piss hides somewhere on this compound, waiting for a C/O to dip writs and letters into it with plastic tongs like an amateur photographer uses a darkroom. If the Bucket o’ Piss did exist, inmates would know because we would be the people to move, wipe, seal and fumigate the Bucket o’ Piss. The guards would never curate their own Bucket o’ Piss. No way. The Bucket o’ Piss theory is beyond the pail.

imageI’m the only one who puts a hole in the Bucket o’ Piss theory because most undereducated inmates distrust government so much that stories of pee-pee pots seem plausible. Another inmate promises that millions of dollars in cash changed hands to secure her convictions. Others swear that the C/O’s receive a twenty-dollar bonus for each disciplinary report they write. When I hear all of this, I don’t know if I should be flattered or insulted that prosecutors/judges/prison staff continue to screw me for nothing.

These theories are more than just crazy; they’re dangerous because they cloud legitimate, meritorious complaints about misconduct. Inmates think that if they amp up their grievances with these wild theories, then the complaint will be taken more seriously and investigated more thoroughly. Instead, their complaints wash down the chute of dismissal. Nothing gets remedied and buckets of piss tip onto our heads Carrie-movie-pig-blood style.

imageThe Bucket o’ Piss theory pisses me off the most when I see dipsticks running the system who need to be wiped out. Even the people who are supposed to defend us shit all over us. As I waited in court for a lawyer who would never show up, I watched another lawyer accuse his client of stalking and following him. Instead of doing what he was supposed to do – report his suspicions to the police of appropriate jurisdiction and then bring the report number to the court as justification for his withdrawal to a conflict of interest in a criminal investigation – the attorney requested that the judge release him because he feared his client. The asshole judge turned the motion to withdraw hearing into a mini-trial of the stalking charges, crimes for which the client was never arrested. I watched forty-five minutes of questions from the bench. “Were you on Elm Street yesterday, ma’am?/ Were you on Orange Street?/ Where were you going?/ Did you have an appointment with Attorney G?”

Ultimately, the judge kept the attorney on the case but issued a re-arrest warrant on the client for failing to show up for her last scheduled court appearance even though she was right in front of him at the moment. Apparently she wasn’t following the attorney too closely otherwise she would have stalked him right into court that day. Because she had been remanded back to York for the failure to appear, not the alleged stalking, she rode in the bus with me back to the prison so I told her what I thought.

image
Because the inmates riding with me had just been through a courthouse battle, the bus was my office.

“What he did to you was improper. He should not have handled it that way.” I advised.

“But I can’t do nothin’ about it.”

“Yes you can. File a grievance. Fuck him. He totally put you in a bad light. You think you’re going to get a fair deal from that judge now?”

“You can help me?” she asked.

“Oh, can I.”

And I drafted the grievance for her. She filed it. Weeks later, she flapped the response letter in my face.

“Explain this to me!”

I scanned and read the attorney’s written defense “I am not a homosexual and even if I was…” “this is when she said I threatened to shoot her…

image
CORRECTION OFFICERS’ TRAINING CAMP

“Gina, where did you get this? Who sent you this?” I asked her.

“The guy.”

“What guy?”

“The lawyer.”

“What’s all this about shooting and being called gay?” I was totally confounded.

“Oh yeah, I added that part myself.”

Oh yeah, right into the complaint I wrote, Gina inserted sentences that the lawyer threatened to shoot her and that the attorney was gay because she saw him talk once to a bail bondsman who was gay, two allegations that sucked up all focus and attention of the inquiry. Again, piss-poor thinking eclipsed the real misconduct. Being gay is not misconduct and threatening to shoot her… well, … threatening to shoot her became understandable as I got to know Gina. But her lawyer still screwed her and got away with it because a Bucket o’ Piss-type allegation spilled onto the legitimate report of his throwing his client under and into the prison bus.

As one would expect, Francine did equal damage to a legit complaint about a federal judge. She was pursing some type of medical claim against UCONN Medical Center when an article appeared in the Connecticut Law Tribune about how the judge assigned to her case in the local district court had enrolled in an experimental drug trial at UCONN to treat his recently-diagnosed Lou Gehrig’s disease. He received treatment from the same legal entity as the defendant before him in Francine’s case. Do I need to say that he continually ruled in UCONN’s favor?

“I’d ask him to recuse himself or grieve him. It’s clear conflict of interest,” I instructed her.image

And Francine did as I advised. When she came up to me flapping the judge’s response to the shot taken at him, I sniffed it for urine and read something about bribery evidence… lack of…

“Did you accuse him of taking bribes? Didn’t we talk about this? That you shouldn’t say that anymore?”

“I never said anything about bribes. I just said he went into UCONN Medical to receive treatment and illegal cash payments,” Francine said in her defense.

I have no idea if Francine’s medical claims have merit and no one else will either because the judge with the clear conflict of interest threw them out. I am so tired of watching other prisoners piss into the wind when they complain about the mistreatment and misconduct that tracks through the system. With fanciful allegations woven into every genuine gripe, we will remain at the bottom of the barrel. Or bucket.

“What? Just tell me what I should write in reply,” Francine pleaded with me but what could I say? You blew it? You’re bonkers? No one needs to spend one dollar in illegal cash payments to get you because they’re already won?

“I don’t want to say, Francine. You know… they’re listening.” I pointed to the ceiling and she nodded, knowingly.

image

 

Over 41,000 readers in almost six months and none of them will rock the Prison Diaries Reader Poll vote.

READER POLL

From the New York Times: Three Attica Guards Resign in Deal to Avoid Jail

Three guards from Attica beat a black inmate, gang-style, breaking his leg and his eye socket. They pleaded guilty to misdemeanors in order to receive probation as their sentences. The prosecution was the first time in the history of the State of New York that a guard was arrested for a non-sexual assault of an inmate.

What would their sentences be if three white inmates assaulted a black guard gang style?

  • 25 years consecutive because it's inmate-on-guard crime. (50%, 3 Votes)
  • 5 years concurrent which is bullshit because anyone who assaults gang-on-person style should be sent away for a long time no matter who they are, what their race is or what they do for a living. (50%, 3 Votes)
  • 10 years concurrent because it's white-on-black crime. Should be more. (0%, 0 Votes)

Total Voters: 6

Loading ... Loading ...

 

 

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page
13 October 2014

The Cards You’re Dealt

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page

cards

I could tell she was trying to ear-hustle my phone call and knew I was about to hang up. S.T. had been eyeing me for the second half of the call.

“I’m broke and I’m hungry,” she announced as she slapped down her last card and got up from the four-man table. Her Three-Five-Nine game was over. Her opponents remained seated, reading the backs of their cards.

Everyone played cards at York. The Department of Correction had printed and distributed decks of cards to all inmates at no cost; the back of each card displayed the picture of a murder victim in an unsolved case along with the phone number of a toll-free tip line that inmates could use to drop a dime even if we didn’t have a penny.Card-Box-Deck-2

Prison does more than just punish crime; it can solve it.  I would advise anyone who wants to crack a case to stop going to cops and hitting ‘em where they ain’t; interview inmates instead.  Prisons contain a bevy of witnesses.  Most people who engage in serious criminal activity rarely run with a mainstream, law-abiding crowd; they hang with others doing the same dirt. That’s why RICO was born.

Inmates were always wondering if someone was tipping off the “poe-lice” when she used the phones, puncturing the balloon of criminal intelligence and letting out all the solutions inside. S.T. spied me finally hang up the phone and head to my cell door. I knew something was about to go down so I hurried. But it still went down.

“Do you have a soup?” – a 25¢ Ramen noodle and powder broth combination that costs sedentary inmates 400 calories of their daily energy expenditure.  I avoided the soups because the expanding sizes of other inmates’ behinds showed them clearly in the red and owing these soups for their ample asses. I also avoided the inmates who wanted them. My prison patience with inmate eating patterns had already grown slim.

“Sure,” I said and handed it to her with no other conversation. I did not know her name, didn’t want to.

“I’m S.T.,” she offered.

“Yeah, nice to meet you.  I’m Chandra.” I muttered without even turning to her as I closed my cell door behind me.

“I know.  I know your case with Webster Bank.”shredding

I shot at the door’s handle to keep it from locking. She must have seen the newspaper coverage, I thought until I remembered that the Webster Bank arrest never made the papers.  Then panic flashed down my intestines as I thought I might have left my file in the inmates’ TV area until relief reminded me that a lesbian-looking lieutenant fed my incoming file on Webster Bank to a shredder in the lieutenants’ office (those jokers put on the shredder a label that read “Fax Machine to Wethersfield” – the location of Department of Correction headquarters – so unsuspecting new hires would shred what they meant to send).  She ground all the paperwork into wavy ribbons of justice denied; the file contained photos of the woman who ripped me off and somehow left me charged.

“We can’t let you have this because it’s photos associated with criminal behavior,” the lieutenant told me.  She said it didn’t matter than it was legal materials.  I didn’t know that this rule never existed until captains handed me the deck of cards with victims’ photos on them.

S.T. never found my file and read it on the low because I never had the file with me inside the prison. She knew about my case because she conspired in it. She was the wheel, she drove the perp woman in the photo to the bank to pick up bank customers’ account information from one of the bank’s employees who was selling it and setting her up for the eventual transactions.  He, as the bank,  made it easy for S.T. and her accomplice to steal.

“Her name’s D.M.  She did you…” S.T. told me, meaning that D.M. had perpetrated the fraud for which I had been arrested.  The details that rolled off S.T.’s tongue showed up any suspicion that she might be a bullshitter.  S.T. was real. I needed her and she knew it.

“Need anything else?  How about some iced tea?” I inquired of S.T., trying to hide my smile.  My patience had returned because I didn’t have to shuffle vindication fantasies anymore. I has just been dealt a straight flush: the name of the bitch who did me.

The way D.M. did me went like this. Flashback to a Christmas season, when I attempted to use my Webster Bank debit card to buy a Gatorade, Twizzlers and candy canes at CVS Pharmacy.  The card-slider thing on the customer’s side of the cashier’s counter kept reading “DECLINED” in its little green-blue dot matrix letters even though the purchase totaled slightly over six dollars.

I threw cash on the counter and ran outside to call Webster Bank’s toll-free customer service line to hear an automated woman announce that my checking account was overdrawn, holding a balance of “negative seventeen thousand, two hundred fifty one dollars and forty-seven cents.  To speak with a customer service representative, please press Zero now.”  I pressed “Zero” so hard and so often, I thought I would push the button straight through the phone.

Photos of the two deposits. Quality was terrible on both but you can see it is an african-american woman in the second/bottom picture.
Photos of the two deposits. Quality was terrible on both but you can see it is an African-American woman in the second/bottom picture. Her face is diagonally up and to the right from the white rectangle that contained the stolen check.

The Zero Lady serviced this customer by informing me that, within eleven days in November, someone had deposited $20,000.00 of fraudulent checks into my account and spent it, even conning someone in the Zero Lady’s office to increase the single purchase limit from $2K to $3,500 on the cloned debit card the thief was using; she needed the limit raised to drain the account fast.  It was Christmas and all legitimate funds in the account were gone.  I felt like Donner and Blitzen ran over my lungs with what this vixen had done.

I sped over to my hometown bank branch and completed fraud paperwork with the manager who told me that the bank would contact me soon.  When I heard nothing from these moneychangers, I called the Zero Lady and she referred me to New Haven Police who casually mentioned a warrant for my arrest, charging me with two counts of forgery and one count of larceny in the first degree.

“Who the hell is she?” I asked each attorney when the prosecutor provided two photos of the alleged me – a black woman – negotiating the stolen checks on my account.  None of them knew who she was or cared to find out. Right after my attorney and I got the the perp’s photos in discovery, Webster Bank mailed my welcome package: my new account number and starter checks.  “Thank you for your patience with us during the time you were the victim of identity theft,” the letter read.

“What the hell is wrong with these people?” I asked my each attorney. None of them knew or cared to find out. The case had been pending for five years when I met S.T.   Flashback over.

Superior Court Judge Jon C. Blue. Even the courthouse marshals hated him.
Superior Court Judge Jon C. Blue. Even the courthouse marshals hated him.

“Mouth, listen. I know who the black woman in the picture is,” I reported to my attorney over the phone in an elevated whisper. She moved to dismiss the charges, not because the photo wasn’t me but on the grounds that the case was too old and violated my rights to a speedy trial because it had collected dust in the prosecutor’s office for five years. Identifying the woman in the picture should have held off a trial for me on the charges. Instead, it cheered the trial on. At the hearing on dismissing the case, Judge Jon C. Blue announced:  “You want a trial quickly; you will get it.  We start picking a jury tomorrow. Adjourned,” he said, banging his gavel.  A new, higher-stakes game had begun.

Scrambling in preparation for a trial she thought would never happen, Attorney Mouth collected D.M.’s probation photo – she had been convicted of criminal impersonation and larceny – and it matched Webster Bank’s photos of the African-American woman.  The bank still swore she was me, a theory seconded by the prosecutor – Webster Bank’s dildo, because he was bald, long and the bank was using him to screw me.  The dildo actually had the balls to suggest that the photos were me, just wearing “black-face makeup and a prosthetic nose.” nose

The trial ended with a hung jury but not after Webster Bank’s attorney flung himself around the courthouse doing whatever he could, saying whatever he thought would work to keep S.T., D.M. and Webster Bank’s manager off the witness stand.  The jury should have acquitted me but neither the African-American woman’s identity nor S.T.’s testimony was ever presented to them. None of them knew or cared to find out. Even though inmates had essentially solved this crime in prison, the solution was never leaked, no one ever connected the truth from the inside to the outside world through toll-free call or testimony.

The statute of limitations left S.T. and D.M. and the bank employee beyond its reach; none of them were ever arrested for, much less convicted of, many of these identity-theft doings. Still, solving crime in prison appears to be in the cards for us because the Department of Correction printed another deck for distribution with the word “solved” stamped across several murder victims’ faces. Someone’s story escaped to the proper ears even if my Webster Bank case was never completely solved. My story is so American-justice, though: I never could have attempted to solve one case if I hadn’t been jailed for another.

When I watch inmates’ hands playing cards, slapping down those state-issued, cold-case cards with their questions that remain,  I know that mine were at least answered even if they were never avenged. That’s the hand I was dealt.

coldcasecards

SHARING IS CARINGShare on FacebookTweet about this on TwitterShare on LinkedInEmail this to someonePin on PinterestShare on TumblrPrint this page