22 February 2016

Dude…Where’s My Appeal?

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“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.


“What the fuck is that?”

“The Supreme Court.”


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.



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.


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Posted February 22, 2016 by chandra in category "Courthouse Battles


  1. By John on

    kudos for your piece in the NYT of today 03/21/16.
    Sadly, what you are describing is only the tip of the iceberg. The main reason there are over 2 million inmates in the US, more than in any other so-called “democratic” country, is because each of them represents a potential for $10,000’s of extortion money per year for the prison-commercial complex at the expense of the inmates, their families and society at large. Phone charges and account fees are only a minuscule part of this gigantic yet legal racket. Good luck and hold tight

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