Politics And Prisoners
From the Front Line
SOME OF MY SUPPORTERS have written to me, asking me to tone down some of the comments I make regarding “conservatives” in general, and individual judges and politicians. They remind me my goal is to obtain sympathetic support from the “powers that be,” and since “conservative Republicans” now hold the confidence of the majority of the voters in the United States, and the controlling majority in both Congress and the state legislatures, I may be driving away the very people who can help me by targeting or blaming them for the failings of the judicial system discussed in my articles.
I responded to one of my supporters in the following manner: “It is not what has been done to me that is the prime motivation for the articles I write, it is what has been done to me that motivates my voice in the matter. If I can change the laws of this nation to allow the wrongfully convicted a forum in which to prove their innocence, then I would gladly spend the rest of my life in prison.”
Do not misconstrue this as some type of martyr complex. It is simply a conviction that I am right in believing that no innocent citizen of this nation should be subject to uncorrected wrongful incarceration because the “powers that be” are so arrogant as to refuse to accept even the possibility that wrongful convictions occur.
The problem is a “dog chasing its tail” problem, or what is known in legal circles as circular logic. It is also a self-fulfilling prophecy.
Every opinion we hold as individuals is based on life experiences or facts which have been related to us by others which we have decided to accept as the truth. The resistance to creating either court forums or independent commissions that are empowered to hear and act upon new evidence of innocence presented by convicted felons, is based upon the assumption that such forums or commissions are not needed because our wonderful system of justice makes very few mistakes. This is what we are taught in this nation from the time we first begin to talk. It is ingrained in our society, our television shows, newspapers, magazines, high school civics courses, history courses, and the respect we teach our children for the police and the law, while warning then against “bad men.”
Who are the “bad men?” Well, those are the ones arrested by the police. All of this instills an indoctrinated assumption that people who have been arrested by the police and sent to prison deserve to be there.
That assumption, unfortunately, has not yet been undermined in most people’s minds by the prisoners released over the past few years by DNA evidence, because each of those cases is portrayed as being a unique situation that somehow slipped past the ‘formidable’ protections the system has in place to protect the innocent. At least, that is how each new case proving that a man or woman spent eight, ten or twenty-five years of their life imprisoned for a crime new evidence proves they did not commit, is presented to the public. Each new exoneration is downplayed as an aberration. Except for Governor Ryan’s “outrageous” claims of a system wide breakdown, such a possibility does not even come up in interviews and discussions, except when a released prisoner comments that “there are other innocent men still there.” A comment which, I have noticed, is never given any credence or expounded upon by the government officials interviewed about the release, or developed by the media covering the story.
If it is not acknowledged or recognized that other innocent people are in prison, and that lack of acknowledgment is the factual assumption used to discredit the need for court forums or commissions where
prisoners are allowed to prove they’re innocent, then that factual assumption itself becomes a self-fulfilling prophecy. The circular logic that follows goes something like this:
Innocent people in prison are not a real problem; therefore, we do not need a court forum or an independent commission where prisoners can prove they are innocent. All you have to do is look at the low numbers of prisoners who ever prove they are innocent to know this is not a real problem in our society, and that our present court system works because it has freed those few people who have proven themselves innocent. Because so few can prove their innocence, and because those are being taken care of by the present system, why spend the money for new court forums and commissions to cure a non-existent problem? We know the problem is rare because so few people are ever proven innocent or released after being found wrongfully convicted.
What is not recognized by such logic is that none of the prisoners who have been found to have been wrongfully convicted were released through a regularly established court process. The hearings they were granted that resulted in their release were not something that is guaranteed to them, as a matter of right, in the law books or in court rules, and of which any prisoner can take advantage as a matter of right. All the hearings held were discretionary hearings, granted by some trial court judge, after the attorney seeking to free the prisoner went to the local media and convinced some journalist to publicize the evidence proving the prisoner was innocent. The courts were then forced by the publicity to “do something” to maintain the appearance of justice in the case.
Why do I emphasize the word “appearance?”
Many years ago a U.S. Supreme Court justice said something that is seldom if ever said in public. I just read it, paraphrased, within the past two weeks in something I was reading, but I was researching some other issue for someone and passed it by. I’ve made a half-hearted attempt to find it again so I could give you the actual citation of the quote. I haven’t found it yet, but I will eventually. If my memory serves me correctly, Justice Holmes either wrote or quoted another justice who wrote: “Justice must meet the appearance of justice.” Courts today have distorted this axiom.
Many court cases discuss how important the public’s belief in the integrity of the courts is to our system of justice. But what you and I think of as justice, meaning that the guilty are convicted and the innocent set free, is not what the courts consider to be justice. A comment by Justice Antonin Scalia in his dissent in Kyles v. Whitley, 514 U.S. 419, at 457-58 (1995), is most telling on this point.
Justice Scalia stated:
“The greatest puzzle of today’s decision is what could have caused this capital case to be singled out for favored treatment [i.e., for careful review of the state court’s application of established constitutional law to the facts of the case]. Perhaps it has been randomly selected as a symbol, to reassure America that the United States Supreme Court is reviewing capital convictions to make sure that no factual error has been made. If so, it is a false symbol, for we assuredly do not do that . . . [and] we do nothing but encourage foolish reliance [on false hopes] to pretend otherwise.”
What Justice Scalia said is the cold truth of the matter, and the heart of what is wrong with our system of justice as it exists today. Only the first state court of appeals examines the facts of a conviction, and every other court to review the case presumes that those findings of fact are correct. The later courts only review the application of established law to those presumed facts.
This excludes from any higher court’s review any facts found or discovered after the trial, regardless of how those facts call into question the facts introduced into evidence at the trial – such as a witness who signs an affidavit admitting to having lied, or even admitting to an honest mistake, in the testimony at the trial, or newly discovered evidence raising a question of the validity of the finding of guilt by the jury.
Politics And Prisoners
Why? As prisoners progress through their appeals, the “funnel” grows more and more narrow, and the “head” of cases increases. A state supreme court, typically with seven to nine judges, is presented with every criminal and civil appeal from every court of appeals in the state. A U.S. district court is presented with every federal prosecution in one-half or one-third of an entire state, plus every state prisoner’s lawsuit or habeas corpus action. A federal court of appeals, for example in the Sixth Circuit, is presented with every appeal from every federal prosecution, state prisoner’s habeas action, or civil rights case in every U.S. district court in Michigan, Ohio, Kentucky, and Tennessee. Then, of course, the U.S. Supreme Court is presented with every appeal from every U.S. court of appeals in the nation, plus hundreds of original actions and motions for a stay of execution in every death penalty case. More cases are funneled to fewer judges at each level.
Over 31,000 prisoner habeas actions were filed in the U.S. district courts in the year 2000. Over 11,000 appeals of prisoner habeas cases were filed in the U.S. courts of appeals in the year 2000. A minimum one-day trial, including transcripts and all appeals required by the exhaustion doctrine, generates around 500 pages of documents. The average habeas corpus runs over 1000 pages of documents. Combined, this means in both the U.S. district courts, of which there are 94, and the U.S. courts of appeals, in the year 2000, prisoner petitions and appeals alone generated a total of over 43,000,000 pages of documents. I simply cannot believe there are enough judges or working days in the year for all of these pages of documents to be read. I am in fact working on an article that will examine this more closely and which will be published on PrisonerLife.com in the near future. That article will be named, “All the King’s Horses and All the King’s Men . . .”
We, as citizens, are entitled to a de novo review of our claims and issues on appeal by an Article III judge. A de novo review means the judge is required by law to examine the entire case as though no other court or judge had ever looked at or decided the errors presented on appeal. The judge is personally required to do this. Not some law clerk, not some law student hired from last year’s graduating class at Yale – the judge is required to do this. An Article III judge is a federal judge, appointed by the president, by and with the advice and consent of the Senate to hold the office during good behavior. The life tenure was created by the Founding Fathers to ensure the independence of the judiciary and to remove all incentives created by running for an elected political office, and pressures of public opinion, from an Article III federal judge’s thoughts when interpreting and applying the law to the facts of a case before him.
Should not the facts to which the law is applied include all the facts of the case, regardless of when they are discovered, when the question presented involves a determination of the question of whether or not a citizen’s liberty has been rightly taken from him?
But not only are any new facts discovered after the trial being excluded from a review of the case, even the interpretation of the facts on the trial record itself is being excluded from a de novo review, by the presumption created by habeas corpus statute 28 U.S.C. $2254(e)(1), which states in part:
“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of the factual issue made by a State court shall be presumed to be correct.”
While this same statute provides a state prisoner the opportunity to rebut a state court’s finding by “clear and convincing” evidence, that evidence is limited to coming from the same trial record from which the initial determination of the “facts” was made to begin with, and because a presumption of guilt attaches after conviction, any evidence contrary to the “determination” made by the state court of appeals is typically discounted as, “obviously having been rejected by the jury, and since the jury is the final word on who was credible and who was not, the evidence is not ‘clear and convincing’ evidence that the factual conclusions of the State Court of Appeals are in error.”
Evidence indicating guilt is quoted by the court; evidence indicating that the evidence of guilt quoted may not be accurate is ignored, whether appearing on the record of the trial, or newly discovered after the trial.
More importantly, the Article III judge merely reviews what the magistrate judge to whom the case is referred tells him in the Report and Recommendation issued, or a summary of the issue his law clerk brings to him, along with a prepared Order, to sign. Every federal judge claims he has made a de novo review of every case before him. Yet I know, and so should you, that it is physically impossible for any human being to read, research, and review a minimum of 500 pages of documents and transcripts in four cases per day, and to write word perfect decisions in each of those cases, day after day, week after week, year after year.
No human being can do what these judges are claiming they are doing each day. Recently, in a couple of cases, we’ve called them on it. The judges became highly indignant, asserting such claims were improper.
In my case, I pointed out, in separate paragraphs, 134 errors of fact and law made by the U.S. District Court in the 38-page decision issued denying my habeas corpus, and denying me a Certificate of Appealability on all of the issues I raised. The court stated that my claims that he had not read the record were improper and untrue, then changed his mind and allowed me to appeal one limited issue, while denying me appeal on four other issues that were an inextricable part of the limited issue he did allow me to appeal on, knowing I couldn’t win the one without the others. The same was done in Ed Emerick’s case, and Willy West’s case, and in Danny Jenkins’ case. Divide and conquer. Make it look good, give the appearance of justice. … After all, the public won’t know the difference. They will never read the 2,690 pages which were filed in my case that the judge was supposed to read.
Recently there has been a movement in this nation to cut the size of the classes in our schools so teachers were not forced to deal with classrooms holding 50 or 60 students. The quality of education suffers for the individual student under such conditions.
If that is a given, then what about courts that do not have enough judges to decide meaningfully the numbers of cases presented to them? Does not the quality of our justice system suffer from such a situation also?
The entire court system in this nation needs to be overhauled. The number of judges and courtrooms needs to be tied to the census so adjustments are automatically made for an increased population. It is not merely the number of vacancies on the courts, because even if every available position for judges were filled, the millions of cases working their way through the court system of this litigation happy society are so burdensome on the structure of the system as to cause it to dispense justice to only a very few of those before the courts. The rest get a cursory review by some overworked law clerk, and rubber-stamped by a judge who can’t even find his desk amid the massive influx of paperwork that floods his chambers everyday.
This is nothing but politics and the inability of our elected leaders to recognize that the judicial system is bankrupt of human resources.
Consider that the United States Supreme Court actually hears and rules upon only between 85 and 95 cases a year. That is two or three a week if you count their summer vacation. I can buy that. I can do three cases a week.
Recently, a new federal judge was appointed in the United States District Court at Dayton, Ohio. Prior to that appointment, the Honorable Judge Walter Herbert Rice, one of the fairest and most impartial judges I have ever had the good fortune to appear before in a case, had a case load of 896 outstanding cases on his docket. He now has around 590. At a mere 500 pages per case, bearing in mind that is for a minimum one-day trial, he has 295,000 pages of documents he has to read to decide those cases. I’m sure many of you reading this article buy your paper for your laser printer by the box, containing 500 sheets of paper. Look around your computer room, and picture 590 boxes of laser paper. It is any wonder cases are still floating around in the courts 10 and 15 and 20 years down the road?
Politics And Prisoners
I ride “conservatives” a lot in my articles. Why? Conservatives seem to be the ones who most ridicule prisoners’ claims of injustice and unfairness, or the first ones to turn their backs when an imprisoned citizen claims innocence. It is from them I hear the statements that “All prisoners claim they are innocent,” or that “All prisoners lie.” Conservatives, by definition, like the status quo. They do not see the need for change in established government institutions, except to maybe claim to be “streamlining” them, or making them more efficient, while in reality merely changing job titles or attempting to consolidate what already exists, without concern for the effect on the people served by the bureaucracy during the upheaval. As long as an idea is “inside the box” it is acceptable. Thinking “outside the box” is, of course, a liberal failing that is not acceptable. Included in the latter is any suggestion that what has been established as the “norm” for a long time is somehow not working, has not been working, or cannot be made to work without a major overhaul. I do bow to Secretary of Defense Rumsfeld’s changes in the basic structure of the military – but it took 9/11 to bring that about.
Do we have to have another Attica, or Lucasville, or, God forbid, worse, to bring about judicial reform and the creation of enough judgeships and courts so that citizens accused of crimes feel they have at least been given a full and fair review of their cases, such as they are entitled to by law?
Is the mere appearance of justice good enough for America?
Perhaps one of the most “conservative” judges on the federal bench today is Judge Boggs of the United States Court of Appeals for the Sixth Circuit. He is closely followed by Judge Batchelder, who sits with him on some panels. Both were on the panel that decided my case. I wanted to make that clear so you are aware I have personal feelings towards both of these judges in regards to what I feel is the intrusion of their personal conservative philosophies into the decisions they issue.
Judge Boggs gave a perfect example of what I find objectionable about conservative judges in his dissent, joined by Judge Batchelder, in the recently decided death penalty case named House v. Bell, 311 F.3d 767, 779-787 (6th Cir. 2002). In his dissent, Judge Boggs stated that it was his belief that for a prisoner who presents newly discovered evidence proving innocence to be entitled to just overcome procedural defaults with that proof of innocence, the prisoner must show that, out of a potential jury pool of 200,000,000 Americans, “every reasonable juror is almost certain to vote to acquit.” Id., at 783. The majority of the court of sixteen judges found Judge Boggs’ position on the issue to be a “remarkable judicial argument . . . akin to medieval scholastic argumentation about how many hypothetical angels, or hypothetical minds, can sit on the head of a pin and disagree.” Id., at 779 (Reply to Dissent, by Judge Gilbert S. Merritt.)
Faced with DNA evidence proving House had not committed the rape that was alleged to have occurred with the murder, and two extra-judicial confessions of the victim’s ex-husband to two separate people that he was the one who had killed his ex-wife, Judge Boggs voted to execute House for the rape and murder of a woman he was clearly innocent of raping and murdering.
There are not enough typewriter ribbons in my locker box, or enough typing paper in my cell, for me to sit here and give you all of the examples of “mainstream conservative” thinking of judges just like Judge Boggs and Judge Batchelder, that I have run across in the past 13 years. Patricia Owen, the judge from the Texas Criminal Court of Appeals whom President Bush nominated, and Senator Hatch praised, issued a decision almost identical to the above dissent’s “reasoning” in a DNA-challenged death penalty case in Texas last year. This judge was confirmed by the Republican majority in the Senate, and now sits on the United States Court of Appeals for the Fifth Circuit. The Republicans ridiculed the Democrats who unsuccessfully filibustered her affirmative vote.
So tell me, how many of you, if falsely accused of murder and facing execution, with new DNA evidence proving you were innocent, would want her on your three-judge panel in your habeas corpus?
All the judges nominated by President George W. Bush, whom the Democrats are filibustering and the Republicans are whining about, think like Judges Boggs and Owen.
I am not only fighting for my life and my freedom from a wrongful conviction, I am fighting for Ed’s life, Danny’s life, Greg’s life, Parrish’s life, Scott’s life, and the lives of the 100,000 (at a minimum) other innocent men and women in the State and federal prisons and jails of this nation. Is it so hard to believe that the judicial system is only 95% efficient, that it makes mistakes 5% of the time? That was the percentage of men found innocent (and 13 of 25 that were scheduled for short-term executions) by DNA tests on death row in Illinois prior to the blanket commutation of sentence issued by Governor Ryan. That is why he issued a blanket commutation of all 167 men on death row. He didn’t know any more who was guilty and who was innocent. What else could he do? Kill them all and let God sort them out?? No moral man should order executions when one in twenty have already been discovered as innocent.
I don’t think a “kill them all and let God sort them out” philosophy is what America’s court system should be based upon.
One night in February 1971, I sat in a poker game with five other men. We didn’t play late because Lam Son 719 was being run into Laos the next day, and the men I was playing poker with were the crew on the CH-47 scheduled to fly ammunition to a firebase to support the dropping of 30,000 men onto the Ho Chi Minh Trail. We laughed, we had a few beers, we listened to some music, we even ate some tuna and crackers Chef had “procured” from the mess tent. One of the men was the kind of guy who could step out of his hooch, fall flat on his face in a mud puddle, and say “good morning,” as you walked by.
The next morning all sixteen CH-47’s of our company flew off to support the men in battle near the border with Laos. Sixteen helicopters, manned by the soldiers of the best of the best – men of the 101st Airborne Division of the United States Army.
Only fifteen helicopters came back. I still hear Taps in my dreams from the service we held for those men the following Sunday.
In July 1970, I had been in-country less than two weeks when I was dropped on a combat assault less than one kilometer from Firebase Ripcord, between Ripcord and Camp Evans, 101st Headquarters. That day Ripcord was overrun in broad daylight. At Ripcord we lost somewhere around 167 men and 16 helicopters, and abandoned all the artillery. After we returned to Camp Evans, that night we were rocketed, and the mess hall caught a 122mm rocket dead center. The corrugated tin roof looked as if someone had taken a high-powered BB gun and sprayed it. B-52s were called in from Guam. When the 101st returned to Ripcord a few months later, they had to remap the terrain. The mountain Ripcord had sat on was gone.*
In November 1970, I sat in the dead man’s hole between two bunkers at Phu Bai, at 3 a.m.. The fog was so thick I couldn’t hold my hand out and see it. I was by myself. An M-16 opened up to my right. I was on bunker 9. It got quiet. I heard the com-lines ringing on the bunkers down to my left. One of the men on bunker 9 came up the trench and told me bunker 12 had called the CP and reported a nine-foot Bengal tiger had come over the wire and was maybe wounded. I spent the most terrifying two hours of my life, alone in the dead man’s position between bunkers 9 and 10, knowing if that tiger came up the trench line my M-16 wouldn’t kill it fast enough to save me. The paw prints we found that morning were the size of dinner plates.
So if I want to bitch about conservative judges who do seem not to think an innocent man’s papers are worth their time to read, or a justice system that just wants to look as if it is doing its job, I have earned the right to do that.
Until next time, this is Jim Love reporting From the Front Line.
Politics And Prisoners
* Casualty figures for the July 23rd, 1970 retreat from Firebase Ripcord reported in history books show 61 members of the 101st Airborne killed, and 345 wounded, during a three-week attack against Firebase Ripcord. The above information was what I was told by other men and officers after our combat assault. I was not personally at Ripcord. What I was told was that a full battalion of NVA regulars launched an attack the morning of July 23rd, 1970, and overran the firebase around noon. Whether the history books or what I heard from firsthand accounts are correct, I don’t know.
The Rule Of Law:
Protecting The Guilty To Protect The Innocent
From the Front Line
May 16, 2003
“Not the least merit of our constitutional system is that its safeguards extend to all –
the least deserving as well as the most virtuous.”
THIS WEEK I received an email that contained a basic flaw in the understanding of what the Rule of Law, upon which our society is founded, means and requires in our system of justice. The email stated: “My philosophy has always been that no ‘innocent’ man is incarcerated – well, not for life, anyway. That maybe they aren’t necessarily guilty of the crime they are serving time for – that surely they were ‘bad dudes’ and their badness has simply caught up with them.”
I wondered how many of you have unconsciously adopted this philosophy of the justice system, to which unfortunately too many prosecutors, police, judges and politicians also adhere? I wonder if you realize that accepting the wrongful conviction of “bad dudes” as being a necessary evil places every citizen at risk of being wrongfully convicted? This is because the same overreaching by the police, the same “trashing” techniques and character assassination used by the prosecutors, and the same bending of the rules of evidence by the trial judges, used to convict these “bad dudes,” once they become accepted practice and are upheld on appeal, become controlling case law precedent condoning these same practices in all trials of all citizens, whether they are “bad dudes” or not?
In the case of Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, at 170 (1951), Justice Frankfurter nicely summed up the ideals of our society underlying the philosophical problems with condoning the wrongful conviction of citizens because they are perceived by the community as being someone unworthy of a fair trial. Justice Frankfurter stated: “The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness.”
In Hill v. Texas, 316 U.S. 400, 406 (1942), the U.S. Supreme Court observed: “Not the least merit of our constitutional system is that its safeguards extend to all – the least deserving as well as the most virtuous.”
On 9/11 our nation was shaken to its core by the brutal attacks on our soil against citizens who were just going about their everyday life. In less than two years this nation has reached out its iron fist halfway across the Earth and conquered two sovereign nations deemed responsible for supporting those who shattered our peace, security and confidence in our nation as Fortress America.
In times of commotion the American people look to our government to take charge and reestablish our ability to walk the streets of our hometowns, free from fear.
The courts, in time of war, are reluctant to place restrictions on the government. This is all too evident in the recent decisions issued in the courts refusing jurisdiction in cases brought by the “enemy combatants” held in Cuba, or the thousands of immigrants swept up off the streets of the United States, only to disappear. Held incognito, hidden away, refused contact with their families, refused even attorneys, for the first time in the history of the United States of America, people are simply disappearing from their homes in the middle of the night. The government, when pressed about the constitutionality of these new storm trooper methods of law
The Rule Of Law
enforcement, invokes the Holy Grail reason of “national security” to federal courts, and turn their backs and walk away.
In his dissenting opinion in the case of United States v. Bollman, 24 F.Cas. 1189, 1192 (D.C. Cir. 1807), Judge Cranch said something we should all consider carefully:
“[the] constitution was made for times of commotion. . . . [In these times] ‘[we] ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which a hundred innocent persons may suffer.’”
This holds as true today as it did when it was written, less than thirty years after the founding of our nation.
The federal protections of the Bill of Rights are meant to protect citizens from “state judges, holding their office during pleasure, or from year to year [who are] too little independent [of the local spirit] to be relied upon for the inflexible execution of the national laws.” The Federalist, No. 81 by Alexander Hamilton, at p. 486.
Our system of justice is based on a finding, beyond a reasonable doubt, by a jury of our peers, of each one of the individual elements constituting the crime charged. Not on whether or not the person on trial is an upstanding citizen, or a “bad dude.” The reason for this approach is eloquently explained in the case of Michelson v. United States, 335 U.S. 469, at 475-76 (1948):
“Courts that follow the common law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, but it simply closes the whole matter of character, disposition and reputation in the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”
Unfortunately, many prosecutors today, convinced some “bad dude” is guilty, pull every trick in the books to place his bad reputation, or prior conviction, before the jury. The prosecutor knows once that is done, conviction of the crime charged, regardless of how little evidence supports the conviction, is almost assured by juries made up of citizens who think “bad dudes” ought to be in prison, even if they are not convinced “beyond a reasonable doubt” of his guilt on the crime charged. In some cases, even when the judge has specifically ruled that evidence of a prior conviction cannot be brought into the trial by the prosecution, the prosecutor simply puts a police officer on the witness stand to “blurt out” the fact of the prior conviction, then “wrings his hands,” and apologizes to the court, knowing the damage is done, and reversals on appeal for such tactics are rare. See U.S. v. Forrest, 17 F. 3d 916 at 921 (6th Cir. 1994). As the old adage goes, you can’t unring a bell.
As in the present charges brought against her husband in the Lacy Peterson case, the prosecutor starts “prepping” the jury through the media, commenting on how confident he is that the (undescribed) “evidence” he has will be enough to convict. The affair with another woman will probably be the most damaging evidence presented against him at the trial. The mere fact the bodies were found near where Scott Peterson says he went fishing is, by law, not sufficient for a conviction. “Mere presence” at the scene of a crime, without more, is
insufficient as a matter of law to sustain a conviction. You can bet the jury will not be given an instruction to that effect at trial.
It is the “bad dudes” who get wrongfully convicted more often than not. This is because jury rooms full of well-meaning citizens, like the one who sent me the message, discount as acceptable convicting a “bad dude” of something they would not have convicted their town mayor of doing, based on the same evidence, or a local police officer of doing, based on the same evidence: it is somehow OK because the defendant is a “bad dude.”
Yet when that happens, we all lose something precious under the Rule of Law. We lose our presumption of innocence. How many of us have had affairs during our marriages? How many of us have people from our past who would describe us as “bad dudes?” How many of us have someone who would describe us as bad neighbors, or troublemakers, or problem children, or as a bad wife or husband, or parent, after a nasty divorce? Do we draw the line at past criminal convictions, or the fact that we are bad Christians and do not attend church regularly, or volunteer for the PTA.? Should our past mistakes, made 20 or 30 years ago, result in our incarceration for crimes we did not commit? Should a jury wrongfully convict us because they don’t like us?
When we are accused of a crime and go to trial in this nation, have we been indicted for our entire life, and all the mistakes we have made during that life? Are we to be convicted on little or no evidence, based on all the mistakes we have made in our life added up by a jury, and sent to prison because we, in the jury’s judgment, are a “bad dude?”
Given those guidelines, and the unlimited investigative money and power of the prosecution, there are few persons whom I could not convince a jury to convict of something emotional, such as a charge of rape or child molestation or murder, with minimal evidence.
As was stated in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal and endowed by their creator with the rights to life, liberty and the pursuit of happiness.”
Last time I checked, that included “bad dudes” also. We all make mistakes, and we should not be held accountable for them for the rest or our lives. People grow older, they grow wiser, they learn from their mistakes in the past. People change as they go through life. Even “bad dudes.”
Until next time, this is Jim Love reporting From the Front Line.
As Gulliver Slept
From the Front Line
June 22, 2003
The present cost of the justice system is almost one-half as large as the entire defense budget of the United States, and instead of investing in programs proven to reduce the recidivism rate of released prisoners, we continue seeking vengeance against these incarcerated citizens, urged on by populist victims’-rights groups and politicians seeking a platform on which to run for re-election.
ONE IN EVERY THIRTY-TWO Americans are in prison, in jail, on probation or on parole.1 The total amount of money spent for all corrections functions, including parole and probation supervision, in 1999 was $54 billion.2 Dividing the total number of citizens under direct supervision by the total cost, each person on parole, probation, in jail or prison costs $8,516 per year to keep under that control.
Remarkably, if you attribute the entire cost of the judicial system and police protection to the criminal element, the figure of $22,292 per year, per citizen under direct supervision, as is generally given by the government when discussing how much prisoners “cost” society, is the figure arrived at when analyzing cost from these reports. Yet only 5% of all litigation and court actions in this nation are criminal in nature: 95% of all litigation is civil. Thus, only $2 billion of the $35.5 billion used to run the court system is spent on criminal cases and litigation. This would add another $315 to the yearly cost of the six million plus supervised citizens, for a total of $8,831.00 per year.
Of course there is another consideration. The state run mental health institutions in large part have ceased to exist. Of the approximately 6.5 million persons under supervision, 280,000 are severely mentally ill, and would previously have been institutionalized in the now-defunct State Mental Institution system. (See “Deinstitutionalization,” by Rodger Doyle, Scientific American, December 2002, p. 38.) Incarcerating the severely mentally ill in prisons and jails costs over $2.5 billion dollars a year. Another 400,000 mentally ill are kept in nursing homes. (See “Deinstitutionalization,” supra).
The cost incurred by society, since the late 1970s, to supervise or incarcerate, has been spent on warehousing prisoners for longer and longer periods of incarceration and supervision due to the “get tough on crime” increases in sentences and the length of supervised release. This was despite the recognition by leading researchers on criminal behavior showing that longer punishment is not effective in reducing recidivism rates, and may actually increase crime rates, as stated in What Works: Reducing Reoffending, edited by James McGuire. (Cited by Roger Doyle in “Reducing Crime” Scientific American, May 2003, p. 33A.) The elimination of rehabilitation programs in the late 1970s and 1980s is now being re-thought in light of meta-analyses of nearly 2,000 studies showing that such programs can reduce recidivism rates by one-half. (See “Reducing Crime.”)
The major problems now faced by prison administrators in switching the goals of incarceration from warehousing back to rehabilitation are multi-level.
First, middle-aged voters were “educated” by the press and the government in the late 1970s and 1980s to believe that rehabilitation of prisoners is a waste of time and money. Senior lawmakers are the same people who voted in the late ‘70s and ‘80s to do away with rehabilitation programs in prisons. The mainstream media, in the late ‘70s and ‘80s, enhanced ratings and sold newspapers by trashing “liberal” politicians who opposed doing away with the rehabilitation programs in the prisons of this nation. Even today, the media concentrate on
reporting crimes committed by released prisoners, even though released prisoners are responsible for only 4.7% of all crimes committed in the United States. (See “Recidivism of Prisoners Released in 1994,” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ-193427, June 2002, table 5, p. 5.) By reporting regularly on crimes committed by released prisoners, the media gives the general public a distorted perception of the fact that released prisoners only account for 4.7% of the crime in this nation – doing a disservice to their readers and viewers, in my opinion.
All of this combined creates a formidable barrier to lawmakers who know that recent studies show rehabilitation works and is capable of reducing that 4.7% number to 2.35%, a reduction in real numbers which, according to NCJ-193427, would have amounted to 70,000 less crimes in thirteen States over a three-year period of time, out of 2,994,868 total crimes committed in those States during that time. (See NCJ-193427, supra, table 5, p. 5 and text.) In these times of tight State budgets, let any lawmaker introduce legislation spending money on programs for prisoners, and he or she is instantly front-page news, and not with the type of headline conducive to re-election.
Second, senior corrections officials, directors, regional directors and wardens also were weaned on the faulty studies of the late ‘70s and ‘80s which erroneously – statistics now show – held that rehabilitation programs were a waste of time and money. Many older staff were pushed out of now discontinued rehabilitation programs and forced to take jobs in security or administration. Many were forced to uproot their families and take lesser paying jobs at new prisons. Worse yet, psychologists and social workers running those programs were forced into state social service programs and left the prison system altogether. There is a dearth of qualified prison personnel available to run new rehabilitation programs. Money to hire such qualified professionals would be substantial, and due to budget cuts now prevalent in all state prisons due to state shortfalls in tax revenue, such programs are seen with a jaundiced eye, especially when weighed against prison closings and guards union complaints of layoffs and reduction of security staff. There is considerable political pressure from guards’ unions to ignore the findings of the new studies. When it comes to firing guards or rehabilitating prisoners, especially in these times of high unemployment rates, the prisoner inevitably loses.
Lastly, content with the high ratings which stories of released prisoners committing new crimes create in the local and national media, that same media has failed to educate the public on the new studies showing that rehabilitation programs can reduce the recidivism rate of released prisoners by one-half. An uninformed public is unwilling to set aside the prejudices against prisoners and rehabilitation programs it formed two decades ago, and, secure in its ignorance, is willing to condemn any politician foolish enough to afford his opponent a front-page story telling the voters he is soft on criminals.
So as Gulliver sleeps, new criminals are born, grow up, commit crimes and go to prison, while old criminals leave prison without any more skills allowing them to become productive members of society than they had when they were arrested. Overall, 67.5% of released prisoners are rearrested for a new offense, almost exclusively a felony or serious misdemeanor, within three years of being released from prison, 46.9% are re-convicted for a new crime, and 51.8% are back in prison on either a new crime, or a technical parole violation,. (See NCJ-193427, June 2002, “Highlights,” p. 1). The prison population grew on the average of 3.6% per year between 1995 and 2001. (See NCJ-195669, August 2002, p. 1, insert).
From 1982 until 1999 the total cost of the justice system increased from $36 billion dollars to $147 billion dollars per year, or 308.9%, at a yearly average rate of increase of 8.1%. Yet the cost of corrections jumped 654.2% for federal, 476.1% for State, and 401.4% for local, for the same years, far outpacing the average cost increase of the entire justice system. (See NCJ-191746, February 2002, Tables 1 & 2, pp. 2-3). It will get even worse as the health of prisoners serving out the long sentences given to them over the past 20 years begins to decline and their medical care costs rise accordingly.
As Gulliver Slept
The present cost of the justice system is almost one-half as large as the entire defense budget of the United States. Instead of investing in programs proven to reduce the recidivism rate of released prisoners, or reducing sentences imposed during a time when it was believed longer sentences would deter crime, we continue seeking vengeance against these incarcerated citizens, urged on by popular victims’ rights groups and politicians seeking a critic free platform on which to run for re-election. The need for equal justice for equal crimes, in relation to the protection of society, which is first and foremost the purpose of the Rule of Law, is why victims and their families are not allowed to sit on juries or act as prosecutors or judges. Why should a victim be allowed to determine when a prisoner’s debt to society has been paid? This is why the State prosecutes a defendant in the name of society. It is why violations of the law are not considered crimes against an individual, but against society itself, and prosecuted as such.
I was in the law library this evening. A young man was there. He has done 10 years in prison for a robbery. He was sentenced to 10 to 25 years by the trial court judge. He saw the parole board and they, after reviewing his crime and his conduct in prison, granted him a parole last month. Two days ago he received a letter from the parole board telling him that his parole had been rescinded. Even though these professional corrections officials felt he had paid his debt to society, the victim of his crime had contacted a victims’ rights group which contacted the parole board, complaining about his being granted a parole and threatening to go to the media. He was given another five-year continuation of his sentence because of that phone call. He was bitter and angry. He had to call his children and tell them he would not be coming home as he had promised them he would.
But you, the public, will never hear about this, or have a say in it, because all of it is done behind closed doors and in secret. Gulliver sleeps, while one in thirty-two becomes one in thirty-one, or one in thirty. Gulliver sleeps as $36 billion dollars becomes $147 billion dollars. Gulliver sleeps as a crime worth a ten-year sentence becomes worth twenty years.
This year over 600,000 prisoners will be released into society after serving their sentences, as was recently reported in USA Today. Those over 40 years of age have a significantly lower rate of recidivism for new crimes, yet are returned to prison at about the same rate as other age groups due to a significantly higher rate of “technical” parole violations, such as not holding a job, missing a meeting with a parole officer, establishing a bank account without approval of the parole officer, or obtaining a driver’s license or driving without prior approval of the parole officer. (See NCJ-193427, June 2002, Table 8, p. 7.) Even though all studies show that prisoners over the age of 40 return to prison for new crimes only 18.3% of the time, “Three-Strike Laws,” Repeat Violent Offender specifications added to charges, and prosecutors exercising their “discretion” to charge multiple crimes for a single offense, routinely impose on men and women sentences which will keep them incarcerated until the ages of 60, 70 or 80 years before they can even be considered for parole or release. This takes away available prison cells for younger serious offenders who have much more chance of committing a new crime if released too soon, and results in both the 3.6% yearly increase in the prison population and the perceived need for more prisons. If laws were passed allowing all prisoners over the age of 40 or 50 to be considered for release back into society, regardless of their sentence, a safety valve would exist to allow older, model prisoners to return to society when prison overcrowding becomes an issue, reducing the need for new prisons, and reducing the steady growth in prison population. Gulliver sleeps, and as he sleeps, thousands of arrows costing $8,831 a year are recycled to be used again, carrying the ropes of debt contributing to the $7.4 trillion dollar deficit today’s children, and their children’s children, will have to bear. Prisons like older prisoners. They are seldom troublemakers, and they have a calming effect on the younger and wilder prisoners.
The 600,000 prisoners to be released this year have the same coping skills, the same education level, the same mental health problems and even less in the way of friends, family and support structure, as they had when
they committed their crimes in the first place. If they were not divorced before they entered prison, they are now. The average time between incarceration and divorce is around 18 months.3 On top of their previous problems, they are now required to pay child support, court costs, supervision fees to parole officers, and the cost of any programs they are required to attend as a condition of their parole or probation. Couple this with the general attitude of the public, and employers, towards released prisoners, and you have created a perfect formula for failure. Gulliver sleeps.
A hundred years ago a man could commit a crime, do his time in prison, get on his horse and ride 100 miles, and start a new life without anyone knowing he was an ex-felon. In today’s world, he can’t travel even 10,000 miles and get away from his past. It follows forever, and he, or she, is looked upon as a second-rate human being the rest of their life. In today’s world, if a man builds a thousand bridges he is known as a great engineer and bridge builder. But if he builds a thousand bridges and sucks one cock, he is known as a cocksucker. Such is our “forgiving” Christian society. One man, the subject of two articles recently in USA Today, was released from prison and then run out of New Jersey, Ohio, Kentucky, and is in the process of being run out of Albuquerque, New Mexico. His fine Christian neighbors have beaten him up, burned down his house, and passed laws designed to prevent him from living or working in their cities. Granted, he was convicted of a sex offense. But does he pose any real danger to his neighbors and the cities where he tried to live? According to NCJ-193427 there is only a 2.5% chance that he will commit another sex offense. (See Table 10, p. 9; see, “Why Megan’s Laws Are Unconstitutional And Many Sex Offense Convictions Doubtful.”) That is the second lowest rate of recidivism of all released prisoners; being ostracized and treated like an outlaw, the odds of his committing a new crime of some type must increase daily as his frustration grows. Of 3,138 released rapists, more were re-arrested for non-sexual assault (8.7%), or for theft (6.2%), than were arrested for another rape (2.5%). (See NCJ-193427, Table 10, p. 9 and text.) A released robber has a 13.4% chance of committing another robbery. A person convicted of assault has a 22% chance of committing another assault. A convicted burglar has a 23.4% chance of committing another burglary. A drug offender has a 41.2% chance of being convicted of another drug offense. (NCJ-193427, Table 10, p. 9.) Released prisoners account, as stated above, for only 4.7% of the total crimes committed in the United States. Perhaps we should be more worried about our neighbors, relatives, friends and acquaintances, because 54% of all violent crimes, 66% of all rapes and sexual assaults, 29% of all robberies, 48% of all aggravated assaults and 59% of all simple assaults are committed by non-strangers . . . meaning by our relatives, friends and acquaintances, as reported by the U.S. Department of Justice, Bureau of Justice Statistics. (See “Criminal Victimization, 2001,” U.S. Dept. of Justice, Bureau of Justice Statistics, NCJ-194610, September 2002, Table 4, p. 8.)
One in thirty-two citizens is in the direct control of the police in this nation. That’s 3.1% of the entire population of the United States. In 1995, 2.7% of the population was under police control. That is a 14.8% increase in the six years between the end of 1995 and the end of 2001, when the statistics were compiled. (NCJ-195669, p. 2, text.) It is also an increase from about one in thirty-nine adults under police supervision in 1995, to one in thirty-two adults in 2001. There were 5,342,900 adults under supervision in 1995, compared with 6,592,800 in 2001. (NCJ-195669, p. 1.)
At the present rate of growth, by the year 2050, half the population of the United States will be in prison, jail, on probation or parole, and the other half will be employed guarding and supervising them!
The cause of all of this seems to be unwarranted hyperbole by politicians and the media about the true incidence of crime in the United States, and the true chances of a citizen being a victim of crime, compared with the history of our nation. In 1973, including all violent crimes, property crimes and personal thefts, there were 44,000,000 victimizations. In 2001, there were 24,200,000 victimizations for these same categories of crime . . .
the lowest number recorded since the National Crime Victimization Survey was initiated in 1973. (See, NCJ-194610, September 2002, p. 1.)
As Gulliver Slept
The odds of being a victim:
At age 12-15, 0.0551.
At age 16-19, 0.0558.
At age 20-24, 0.0447.
At age 25-34, 0.0293.
At age 35-49, 0.0229.
At age 50-64, 0.0095.
At age 65 or older, 0.0032.
The odds of being raped are 0.001.
Of being robbed, 0.003.
Of being assaulted, 0.005.
(See NCJ-194610, p. 2, text.)
Yet watch the evening news, or attend a fundraiser for a politician, and you’ll be lucky if you find the courage to leave your house for the next two days.
Enough statistics for now. Consider vengeance sentences and their affect on both rehabilitation and the prison system itself. Time to wake up Gulliver!
We cannot remove all chance from life, just as we cannot remove all crime from society. Yet as the odds of being a victim have declined, the instant communications capability of the news media has increased exponentially, bringing even remote crimes into our living rooms in full color. Politicians, greased by lobbyists representing organized health care, insurance companies, corporations involved in processing natural resources, local political and financial powers wanting government funding for various pet projects (also called “pork”), do not want to discuss topics like health care, the cost of prescriptions for the elderly, the environment, or the deterioration of our education infrastructure in primary and secondary schools. But crime, now there is a topic that will always draw a standing ovation. After all, it’s on the news every night, and on the front page of the newspaper every day. So it must be pervasive and a problem that needs to be addressed.
What crime has done is to replace the Soviet Union as a threat, and a topic, for a safe political dialogue. Did you ever notice that, as long as you have been alive, the government has moved from one alleged dire threat to our nation to another? They never say, “Gee, you know, there are some problems in the world, but overall we are in better shape than we were 40 years ago. So everyone relax and we’ll see if we can work on the few minor problems that are left here at home. We have crime down as low as it has been since we started keeping numbers. Let’s see if we can give the prisoners we have some guidance, work skills and education, and reduce the number we need to keep in prison, thereby reducing this $147 billion dollar a year expense. Then we can use that money to build schools and help the elderly pay for their medication. Because older prisoners seldom commit new crimes, let’s review each one and see if we can let them out so they can return to being productive members of society, instead of a drain on it.”
Of course. most of the problems lie with you.
You think the law is a personal tool of your vengeance against those who have committed crimes against either you personally, someone you love and care about, or against other people you don’t even know, because you fear what happened to them may happen to you. You don’t understand the law is solely for the protection of order in society, and that for the law to work, a citizen who violates the law, whether it is a murder or jaywalking, should be given the same punishment as any other citizen who breaks the same law. You don’t understand that 98% of all prisoners are going to be released some day. You don’t understand that when you go to a victims’ rights group to pressure a parole board to keep a prisoner longer, he’s seeing other men who
committed the same crime against someone else – who is maybe a more forgiving person than you are and who did not oppose a parole after the average time for the crime was served – leaving and going home to their families and children, while he sits here serving your vengeance time.
When personal vengeance and pressure from victims’ rights groups increase the time a prisoner spends in prison beyond the national average served by other prisoners for the same crime, the concept of “equal justice” is undermined. Personal vengeance has the same affect as vigilantism. The law considers crimes as crimes against society to remove the victim from the punishment for the same reasons it does not condone revenge killings, lynchings or citizens taking the law into their own hands. Again, this is why victims, their family and friends, are not allowed to serve on juries, or as the judge or prosecutor at the trial of the perpetrator. When a defendant is sentenced to 8 to 25 years, the judge, the prosecutor, defense counsel and the defendant, all know, that in 5-1 2 years he will see the parole board, and may be released then, or maybe receive an outdate of one or two years later. By the time a defendant gets to trial or goes to enter a plea, they know about good time and about the average time society requires to be served for the crime committed. Many of them only plead guilty because of the knowledge that they will not be forced, or expected, to do the full 25-year maximum sentence, but only the minimum sentence, minus good time credits. In fact, in many cases, this is the only way the prosecutor can get a guilty plea and avoid costing society the expense of a full jury trial.
Understand that this unspoken agreement, that the defendant will not be imprisoned for the maximum possible sentence, is an integral part of the plea bargain process. Understand also that if defendants become aware that this unspoken agreement is being broken, then no one will enter a plea bargain and every case will go to a jury trial, resulting in a complete breakdown of the entire judicial system, because there are not enough judges, courtrooms, prosecutors or jurors available to give a jury trial within the requirements of the 6th Amendment’s right to a speedy and public trial to the 14,031,070 citizens arrested by law enforcement each year in this nation. (See, “The Sourcebook of Criminal Justice Statistics, 2000,” U.S. Dept. of Justice, Bureau of Justice Statistics, Table 4.1, p.352, showing 14,031,070 arrests for non-traffic violations in the United States in 1999.) Further, this early release is predicated on the defendant behaving while in prison, staying out of trouble, and working at a prison job. If the prisoner is going to spend the entire maximum sentence in prison, he or she has no incentive whatsoever to do any of those things.
93% of all criminal defendants enter a plea of guilty. Every prisoner is required to have a prison job, and in truth, prisoners run the prisons, regardless of what the government likes to think.
If every criminal defendant refused to enter a guilty plea because he knows some victims’ rights group will call and stop his parole, and if every prisoner, knowing no early release was possible, sat down on their prison bunk and told the guards to clean the shower if they wanted it cleaned, or sweep the hallway, or cook the meals, the entire prison and court system would collapse in 18 months. Trust me, rehabilitation is cheaper than vengeance.
But you don’t know all that. Gulliver sleeps.
So the next time you see a victims’ rights group crooning on the local news about how they stopped so-and-so’s parole release, the next time you hear about a prisoner being paroled and overhear some self-righteous, holier-than-thou citizen deciding to write to the governor, or the parole board, to complain about the release, think about the alternatives possible if the prisoners decide they have no reason to plead guilty, or have no reason to make license plates, or have no reason to be rehabilitated. They still get out.
Gulliver needs to wake up and smell the roses, because when you inject victim’s desire for vengeance into the decisions affecting the right to equal justice under the law for all citizens, then you might just be opening Pandora’s Box. There are over six million of us in your prisons, jails, on parole or on probation, plus over 30 million ex-convicts now free and living in society. That’s 24 times the size of the United States Army. Maybe
As Gulliver Slept
we need to start a movement to regain our right to vote in this nation, such as the ex-convicts in Canada won just this year. This nation could use an additional 36 million votes for Democrats in the next presidential election, don’t you think? Jeb Bush and Florida wouldn’t mean much then, and the U.S. Supreme Court wouldn’t get another chance to pick our president.
Most of your ancestors were ex-cons, religious outcasts and the “huddled masses” of Europe. Today’s ex-cons are getting tired of being treated like second-class citizens, denied the right to vote, or even to hold decent jobs for their families. Gulliver had better wake up.
I wonder what today’s victims’ rights groups would have recommended to the Senate concerning the case of another notorious prisoner, and danger to society? His name was the Apostle Paul.
Until next time, this is Jim Love reporting From the Front Line.
See, “Probation and Parole in the United States, 2001,” NCJ-195669, August 2002, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, reporting 6,592,800 citizens under direct control of either federal, State or local police agencies. In 1999, that number was 6,340,800 and the total cost of the entire judicial system was $147 billion dollars. See “Justice Expenditure and Employment in the United States, 1999,” NCJ-191746, February 2002, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. See Table 2, p. 3, NCJ-191746, Id.
That average does not seem to be true for men married to either Asian or Latino women: they seem to stick with their men for much longer periods of time.
The above is approximately 1/2 of my book. I will post the rest in installments because it includes statistical charts that will not copy into this format correctly and have to be reconstructed.
From the Front Line
September 2, 2002 (Updated in part June 7, 2009)
The government considers innocent people in prison as collateral damage.
They are simply the cost of enforcing law and order.
FROM 1969 TO 1972 I served my country honorably, and received an honorable discharge from the U.S. Army. From July 1970 to July 1971, I served with the 101st Airborne Division in Northern I Corps of Vietnam. Thirty years later I sit in a prison cell, sentenced to four consecutive life sentences for sex offenses I not only did not commit, but can prove I did not commit. Thirty years later, I have found out that what I was told about my country from the time I was a small child is a lie.
A friend of mine, Jerry McMeans, is in the same situation as I am. His sister said something on the telephone to him last week that summed up the cause for all the feelings of anger with which I struggle each day. She said the public believes the courts of this nation search every case for error and diligently protect the rights of the accused and convicted, but the public doesn’t know that what actually happens in the courts is exactly the opposite. At this point I generally face raised eyebrows, and the “all of them say they are innocent” attitude from the free world. In order for you to understand what I am claiming, and why, I want to expose some myths and disinformation.
Primarily, it must be understood that all prisoners do not claim to be innocent: 93% entered a plea of guilty to their crimes and are simply doing their time. Since I have been fighting my case I have become one of the infamous jailhouse lawyers that are slandered by the government. I hear their stories, I read the transcripts of their trials, and I see the evidence that was not placed into the record of their trials. Few ever claim they are innocent of their crimes, although many claim they were overcharged and were convicted of more serious crimes and sentenced to longer terms than the crime actually committed warrants by law. Yes, they complain about that, and they appeal, and they fight in the courts concerning sentences that they consider excessive. If you were guilty of shoplifting and sentenced for robbery, you also would complain.
But those are not the kind of cases that I accept and with which I try to help. The kind of cases I take are men and women, just like you, who have committed NO crime at all, but were still tried and convicted by a jury of their peers, and sentenced – in some cases, like mine – to spend the rest of their lives in prison.
At some point in the past, sometime around 1994, I read an article, to which I refer subsequently in this article, which I believe was in Prison Legal News. That article stated the U.S. Department of Justice has issued a study finding that statistically 8% to 12% of all state prisoners and 4% of all federal prisoners were either actually or factually innocent. For the reasons stated below, I arrived at a 5% innocent percentage. This was further confirmed by an article published in Playboy® in July 2002, “False Justice,” by Chip Rowe. Five per cent sounds like a reasonable rate of failure of any system – it is a reasonable rate of collateral damage – unless you are talking about fathers, mothers, sons and daughters who believed in the American Dream, only to wake up in a nightmare.
These men and women are the collateral damage of the War on Crime that started during the Reagan administration and continues today. In war, when a factory is bombed to hinder the production capacity of the enemy, almost always some civilians and non-combatants die. The military calls this collateral damage.
Unfortunately, because it is impossible to bring the dead back to life, that damage is not reversible, and is simply accepted as the cost of prosecuting the war.
But collateral damage in a War on Crime is reversible. The wrongly convicted can be given their freedom and compensated for the time they were imprisoned for crimes they did not commit . . . or can they?
The recent focus and debate on innocent people in prison has two serious flaws. First, it concentrates only on persons facing the death penalty. Second, it focuses only on persons who can prove their innocence through DNA testing that was not available at the time of their convictions.
Presently there are two acts pending before Congress concerning innocent prisoners. One of the two is seriously flawed. That act, sponsored by Senator Orrin Hatch, recognizes DNA evidence as proof of innocence only when the prisoner’s identity was in issue at the trial. In other words, if you were falsely accused of rape by a stepdaughter, or someone who knew you, regardless of whether or not DNA evidence now proves that your accuser lied and you are innocent, the act cannot be invoked by you and does not create a forum in which you can prove your innocence.
Why is any new legislation needed, some people may ask? It is because there is presently NO federal court, no available action, no possible filing, in this nation, where a person in prison who can prove he is innocent, can as a matter of right, receive relief and be released from prison. Recent DNA exonerations have been carved out as an exception because they receive a lot of media attention. Yet for 15 years prosecutors have fought against claims of innocence based on DNA tests. Lately the prosecutors are simply refusing to make the evidence available for testing. Non-DNA proof of innocence has traditionally received little review, consideration or attention by the courts. This lack of attention to claims of innocence is encouraged by the U.S. Supreme Court’s present conservative majority, who feel determinations of facts, guilt and innocence, are best left to the state courts. Why the Court believes a citizen’s constitutional rights are not implicated by being wrongfully imprisoned, with no recourse at law, even when that citizen has hard proof of innocence, is unclear. The Court tends to avoid the subject, as opposed to giving reasons for ignoring it.
In 1993 the U.S. Supreme Court decided, in a case called Herrera v. Collins, 506 U.S. 390 (1993) that a freestanding claim of actual innocence was not a cognizable or valid claim in a petition for writ of habeas corpus. Further, in 1996, the same Senator Orrin Hatch, along with Senator Trent Lott, sponsored a bill called the Anti-Terrorism and Effective Death Penalty Act. This act amended the habeas corpus statutes in many ways. It placed a one-year time limit on the filing of the writ. This was done at a time when it was known that a person who could prove his innocence spent an average of nine and one-half years in prison before he could either obtain his release, or obtain the proof he needed to obtain a release. A further provision was enacted that prohibits any prisoner from raising in a second petition the same claims that were raised in the first petition. Consider that Congress is presumed to know the state of the law, and also the decisions of the U.S. Supreme Court, at the time they pass any legislation, and are presumed to have taken that law into account in passing the new legislation.
Another line of cases from the U.S. Supreme Court concerning habeas petitions began in 1986 with a case called Murray v. Carrier, 477 U.S. 478 (1986) and was refined up to a case decided in 1995 called Schlup v. Delo, 513 U.S. 298 (1995). These cases hold that proof of innocence can only be used to overcome errors made in state courts that would normally prevent a federal court from hearing them under the Procedural Default Doctrine.1
So currently, any prisoner who has an independent freestanding claim of innocence has no federal forum in which that claim can be heard. They have no avenue down which they can walk and obtain their freedom.
Critics of such thinking are quick to point to the power of the governors of the states to grant pardons, or clemency. But the reality of this is that in today’s political climate it is political suicide for any governor to do
so. Remember Willie Horton? Any governor who grants a pardon is sure to hear that name in the next election he faces. Besides, as stated by the dissent in Herrera v. Collins, (citation omitted), the vindication of constitutional rights has never been relegated to the unappealable discretion of the executive branch of government, and such a relegation is not sufficient protection of the rights of the truly innocent.
According to a study by Professors James S. Liebman and Randy Hertz, of Columbia and New York Universities, death penalty cases have been reversed at a rate of 68%. What do persons facing the death penalty get in the way of protection from the law? They receive two lawyers at trial, plus investigative money and money for expert witnesses. On appeal they are appointed a lawyer to take the case to the State Supreme Court; a lawyer is appointed for any collateral post-conviction proceedings in the state courts; and a lawyer is appointed for any and all federal writs of habeas corpus, and all appeals from those writs. All of these lawyers must meet certain standards of experience and must be “death” qualified. Meaning, they are experienced criminal defense lawyers.
What do non-death penalty prisoners get, even when facing life in prison? They get one lawyer at trial and one lawyer on their first appeal . . . and that’s it! They have to fight for any money for investigation or expert witnesses. The lawyers that are assigned to their cases frequently have little or no experience in criminal trials or appeals. These lawyers seldom if ever have any experience with a federal writ of habeas corpus. As a result, few of these attorneys correctly raise the errors occurring in the trials in the state courts so that they can be addressed in federal courts. A study conducted by the Bureau of Justice Statistics found that the vast majority of non-death penalty prisoners who file for a writ of habeas corpus are not in compliance with the “exhaustion doctrine.” They are procedurally defaulted because their attorney did not do their job correctly in the state courts, or the prisoner erred in some manner when they were forced to file their own appeal to the highest state courts – as required by the “exhaustion doctrine.” Convictions that were obtained in violation of the Constitution of the United States are allowed to go uncorrected because due to a procedural rule violation prisoners are unable to have legal errors addressed on their merits in state and federal courts.
As for those who have proof of their innocence, the federal courts, because of the decision in Herrera v. Collins, refuse even to grant motions for new evidence to be admitted into the record. So when these decisions are reviewed, or published, no mention of the proof of innocence appears on the record of the proceedings. I know – that is what the courts to review my case are doing to me.
I was accused of oral sex with a 12-year-old girl, the daughter of a past girlfriend. The charges were not brought until 1996. The State refused to give any times or dates until the accusing witness testified at the trial. The only notice I was given of when these acts were alleged to have occurred was an indictment that stated “sometime in 1988, sometime in 1989, and sometime in 1990.”
At the trial the dates given were “the week after Christmas in 1988, each month after that in 1989,” and for the 1990 charge, the total testimony was that she “didn’t remember when the last time was.” No physical evidence was adduced into evidence to show that any crime even occurred. No other persons testified to witnessing any crime.
Since my trial in 1996, I have obtained affidavits and documents from five different people that prove beyond any question that at the times testified to at my trial I was living in Mexico and Belize. Because eight years had passed between the time the crimes were said to have occurred and the date I was indicted and tried, and because the prosecution refused to give us any dates or times before the trial started, there was little evidence available to prove my time out of the United States that had not been destroyed. We managed to adduce into evidence my passport, which showed me entering Belize in June 1989. We found my mother’s telephone records that showed collect calls from Mexico and Belize starting on December 1, 1988, and
continuing until July 20, 1989. But I had no other evidence to prove my presence in Mexico available at the time of trial. Understand that in 1988 you did not need a passport to go to Mexico, just a drivers license. The passport was issued at the U.S. Embassy in Mexico City on May 30, 1989, prior to my trip to Belize.
But since the trial my mother has found an old address book I had with me in Mexico packed away in a box in her basement. Once I had their addresses, I wrote letters to all the people that I had met in Mexico, without receiving any answers; the people that I had met in 1988-89 had moved, remarried and changed their names, or in one case, I later found out, simply refused to write to a prisoner because they did not want to become “involved.” It must also be understood that where I was living in Mexico was not an area that visitors from the United States frequented: it was in large part a Canadian and European vacation area.
My first break came in January 1999 when my stepmother sent registered letters to all the people in the address book. A woman from Switzerland responded. Her old mailman knew her personally, and when he was given the registered letter addressed to her old address, he made the effort to forward it to her, even though the forwarding address service had long expired. God bless him. From her address book, found a month after she executed an affidavit, other witnesses were found and contacted. The woman from Switzerland is a mother of three children. She executed an affidavit attesting she arrived in Zihuatanejo, Mexico on January 2, 1989, that a woman from Canada had introduced me to her in January 1989, that she stayed in Mexico until February 28, 1989, and that when she left on February 28, 1989, I was still there. She attached documents showing that she went to a Spanish school while she was there, and a picture of her and me sitting on the beach in Mexico drinking from a coconut. A copy of her affidavit was forwarded to the U.S. ambassador to Switzerland. She sent me the address of the woman from Canada who had introduced us.
The woman from Canada is a 65-year-old retired schoolteacher. She executed an affidavit notarized by an attorney in February 2000, and a corrected affidavit in August 2000 (because of a typographical error as to a date she gave) in which she attests that she and her former husband arrived in Zihuatanejo, Mexico in September 1988. She attests that she met me in the fall of 1988, that I lived in an apartment on the beach where she was staying, that she saw me on that beach once every two or three days, and that when she and her husband left Mexico in May of 1989, I was still there.
My mother also found, packed away in the basement, a book that I had brought back from Mexico with me. The book was autographed by the author. The author is a citizen of South Africa found living in San Francisco in July 2000 by my investigators. The autograph names me, wishes me good luck on my own book, and is signed by her and dated “Zihuatanejo, December 1988.” In her affidavit she attests that the only time she had ever been in Mexico was between December 5th and 8th of 1988, that the book was signed then, and the handwriting and signature in the book were hers. She also attests she doesn’t remember me, but does remember being introduced to a man down the beach and signing the book while she was there.
The fourth witness found was a woman whom I have known since she was nine years old. Many years ago we became pen pals. She attests that in December 1988 she had been looking for me, and was told by my family I was in Mexico. She hired a private investigator in Costa Mesa, California, who located me in Zihuatanejo, Mexico. She wrote to me at “General Delivery” there, and I wrote back and called her in December 1988 on the phone. She also submitted a “Day Planner” page that notes I called her on March 12, 1989 from Mexico.
Mother also found a copy of a doctor’s bill on which the date 11/11/88 appeared. When she told me this I remembered I had received immunizations before traveling to Mexico. The doctor was contacted, and her medical charts and records were obtained. Those records show me visiting her office on 11/11/88. The chart reflects that I stated I was going to Old Mexico and wanted to know what shots I needed. The medical chart reflects I stated I was leaving Sunday. The next entry on the medical chart is for August 14, 1989, and reflects me stating I had just returned from Mexico and had contracted scabies while there. She treated me for scabies
until October 14, 1989, and issued a refill of the Kwell lotion after complaining the scabies was coming back, on that date. Her affidavit and medical records were not obtained until October of 2000. I had no previous knowledge of what my doctor had recorded in my medical records.
I filed repeated motions in the federal court to have all of this evidence admitted into the record of my habeas corpus proceedings. All my motions were denied. I appealed that ruling, claiming that proof of the partial alibi I advanced at the trial was proof the jury had been prejudiced by the other constitutional errors I was raising in the writ. Not only was my appeal denied, but I was denied even an appeal on the issues of the proof of my innocence. I appealed to the U.S. Supreme Court in January 2001. Less than a month later the court refused to hear my issues. Another portion of the Anti-Terrorism and Death Penalty amendments requires that a state prisoner obtain a Certificate of Appealability on each and every issue they want to appeal. The courts have avoided my proof of innocence by denying me that Certificate of Appealability. All of the above evidence of my innocence sits in a clerk’s file, refused admission into evidence in my appeal of the constitutional issues.
So, even though I can prove that the charges made against me are false, I have been refused even placing my evidence into the record for consideration by the courts. The judges will not even look it at when my appeal is heard. They cannot look at it, because it has been denied admission into the record, and a court can only consider the record when ruling on a case.
A man whom I helped, Dale Normand, was released from prison in 1996 by order of Ohio Governor George Voinovich. This was after I proved in court that the prosecutor who tried him had arrested his key witness the night before his trial started and had that witness hidden away in the San Diego County Jail. That same prosecutor told the jury, the defense, and the trial court judge on the morning of the first day of the trial that he had no idea where that witness was, and that the last time he had located that witness the witness had been somewhere in Australia. Mysteriously, there appeared in this man’s mail at his prison a manila envelope with no return address which contained the National Criminal Identification Computer teletypes between the prosecutor and the San Diego County Jail wherein the prosecutor arranged for the witness to be held during the trial. Upon a complaint filed by me to the F.B.I. of a criminal civil rights violation by the prosecutor, for intentionally depriving the man of his Sixth Amendment right to compulsory process, a full field investigation was launched. The F.B.I. concluded, after interviewing the witness and the Sheriff’s Department in San Diego, that had the witness testified he would have provided a complete defense to the technical securities violations charged. The F.B.I. filed a recommendation to the U.S. Attorney that the State prosecutor be indicted for a criminal civil rights violation, similar to the charges faced by the officers in the Rodney King case. The U.S. Attorney exercised his discretion and declined to prosecute the prosecutor because over six years had passed since the civil rights violation had occurred. In other words, because it took us six years to find the evidence and argue the case in the state courts, the prosecutor got away with it. (See, Normand v. McAninch, No. 98-3747 (6th Cir. 04/06/2000); 210 F.3d 372 (table); 2000 WL 377348.)
At this point, I should clear up another misconception the public has. Prisoners have strict time limits for filing state appeals that (in Ohio) are, at a maximum 45 days. So, when you hear about a prisoner’s conviction being challenged 10, 12, or 15 years after the conviction, understand that the prisoner is only responsible for the few months of that delay which were required to prepare the briefs: all the other time involved was while his case sat on some judge’s desk gathering dust. The stronger the prisoner’s issues, the longer the case lays there before a ruling is issued, and in many cases the prisoner has to file in a higher court and force a ruling to be made.
Edmund E. Emerick
In another case that I started, Edmund E. Emerick was accused of a double murder. It was a death penalty case that eventually resulted in a sentence of 70 years to life for Ed. His trial record was over 4,000 pages long.
I spent six months just getting the record, which the State refused to send to him. This is not uncommon. Imagine being sentenced to 70 years to life in prison, and no one will give you the transcripts or record of your trial.
After I received the record I spent three months going through it, page by page. Two witnesses had testified they saw Ed in the general area of the bar where the murders had occurred. Both witnesses testified he left the area of that bar by no later than 11:15 a.m. One of the witnesses even referred to a tower clock he had looked at to check the time.
In reviewing the transcripts, police reports, autopsy reports, etc., it became obvious there was no evidence to prove the man had ever been in the bar that morning. Then I hit the jackpot. I found a police report concerning an investigation of the telephone calls made to the bar that morning. The cousin of one of the victims had called the bar and talked to someone in the bar who told him his cousin was at the bank. The bank’s records show the man had left the bank around 10:15 a.m. after making the deposit from the business of the night before. The bank was only a few minutes from the bar. But what was most critical was that the call had been made at 11:32 a.m., 17 minutes after the only two witnesses testified the man had left the area. This police report was never placed before the jury, and never argued at the trial by this man’s attorneys. Upon filing of a writ of habeas corpus on the other numerous errors appearing at the trial, and the presentation of this evidence to the federal judge, the federal Public Defender’s Office was appointed as counsel in the case. It is still in litigation, but that evidence has still not been admitted into the record. Ed is now represented by The Ohio Innocence Project, and Professor Mark Godsey, at the University of Cincinnati College of Law. The latest reported decision in Ed’s case is State v. Emerick, 170 Ohio App. 3d 647, 868 N.E.2d 742 (Ohio App. 2 Dist. 2007). Also look for articles on Ed Emerick at The Columbus Dispatch.
In another case, the one involving the sister mentioned before, a man I have now known for 18 years – Jerry McMeans – was accused of sexually molesting his stepdaughter. In the middle of the trial the judge, upon a complaint by the defense attorney that he believed exculpatory evidence had been withheld from the defense, reviewed a Children’s Service file on the stepdaughter. The file revealed the stepdaughter, unbeknown to the defendant, had made numerous complaints to her social worker of being raped by several other men. Those complaints had been thoroughly investigated confidentially by Children’s Services, and all had been found to be false. The trial court judge refused to allow the defense to cross-examine the stepdaughter on these previous false reports of rape. The jury never heard that this girl had made numerous similar rape reports against numerous other men. Jerry was convicted and sentenced to five life sentences. He has been fighting the case since 1989, and he is presently 74-years-old. The federal court of appeals held his claims of the withholding of exculpatory evidence to be procedurally defaulted, and denied him a new trial.
In another case a man I just met, Scott Robinson, who is the cousin of a friend, was accused of a murder. Since the trial, an affidavit has been obtained from a J.C. Penney’s salesperson who attests that at the time the murder was alleged to have occurred, the man was at J.C. Penney’s, which is at least 15 minutes from the place the murder occurred. This new affidavit was presented in a Motion for New Trial. An evidentiary hearing was denied and the evidence refused admission into the record.
A robbery case
In another case a man’s brother has confessed to his family to a robbery for which his brother was convicted and is serving 40 to 75 years. The victim, three weeks after the trial, called the prosecution and told him she had just seen the man who robbed her, and she had misidentified this man at trial. The prosecutor, apparently one of the
honest ones, and there are few of those, contacted the defense counsel and a Motion for New Trial was filed. At an evidentiary hearing, the victim recanted her identification of the man and testified she had been wrong. A court appointed defense counsel did not subpoena the brother and force him to appear or testify at the new trial hearing. The trial court judge stated he believed her testimony at the trial and did not believe her new testimony, and denied the motion for a new trial. The federal court held the man’s Petition for Writ was filed beyond the one-year time limit, and dismissed the case. At oral arguments recently held on appeal, the “feeling” of my attorney, who accepted this case pro bono at my urging, was the court of appeals will affirm the dismissal of the case.
A Parole Violation Case
In another case on which I am working, a man who had spent 17 years in prison was released on parole. In April 1998 he was granted a final release from parole, and his final release papers were issued and sent to his parole officer. Another parole officer has confirmed this. In May 1998, the man was arrested for a technical parole violation, over a month after he had been released from parole. Without a trial, without any new charges being brought against him, he was sent back to prison and given another ten years. After his release from parole, the State had no jurisdiction over him. He is now incarcerated without any jurisdiction lying in any court of law. We received an extremely anti-prisoner federal judge assigned to his petition for a writ. As of this time, it appears to be on a fast track towards dismissal because the State has argued that he filed the writ beyond the one-year time limit which, they claim, started in June 1998 when his parole revocation hearing was held. I have claimed that to be incarcerated on an expired sentence is an ongoing constitutional violation that renews itself every day, and no one-year time limit can apply without resulting in the suspension of the Great Writ in violation of Article 1, §9, cl.2 of the Constitution. What was done to him is no less than lawless State action, the primary concern of the writ. I expect to be on appeal at any time.
There is a minimum of 77,000 innocent people imprisoned
Who are your judges? How many of you vote for a judge based on his being a former prosecutor? Do you realize that almost all judges now; both state and federal, in this nation are former prosecutors? Do you realize that almost all of your senators and representatives are former prosecutors, or started their political careers in some law enforcement field?
Did you know that of 381 cases reversed for prosecutorial or police misconduct since 1963, no prosecutor or police officer was disciplined or removed from office for that misconduct? See, Actual Innocence by Barry Scheck, Peter Neufeld, and Jim Dwyer (Doubleday, 2000), p. 175.
In 1994 or 1995, in Prison Legal News, in a “Matter of Fact” column by Dan Pens, a report from the Department of Justice, Bureau of Justice Statistics was quoted as finding 8% to 12% of all state prisoners are actually or factually innocent, and 4% of all Federal prisoners as actually or factually innocent. I have taken the mean of those figures, 10%, and cut them in half to arrive at an error rate in the justice system of 5%.2 The Bureau of Justice Statistics reports that as of June 2008 there were 1,540,800 prisoners in federal and state prisons. Even at 5%, a minimum of 77,000 of those prisoners are innocent persons languishing in this nation’s prisons. Only a small minority of prisoners claim they are innocent.3 But by disseminating the disinformation “all” prisoners say they are innocent, the government causes the public to ignore those who claim, or can prove, they are. By portraying all prisoners as the “boy who cried wolf,” the government ensures the few who have a wolf at the door will be ignored. The government considers innocent persons in prison as collateral damage. They are simply the cost of enforcing law and order. Divorced, all their savings and assets consumed by lawyers, tired and angry, they sit on steel bunks, as I am right now, staring at the concrete blocks in the walls of their cells.
Most cannot prove their innocence. Many cannot even read and write well enough to communicate their plight in a meaningful manner; they are dependent on jailhouse lawyers, most of whom are interested only in
taking whatever cigarettes they can get while giving them false hope. Most jailhouse lawyers are not worth their weight in salt. But there are a few good jailhouse lawyers. You will never see them interviewed on TV, or read about them in the newspaper. The ones you do see are the idiots who are handpicked by the warden to meet with reporters and the press. A lot of the good ones end up in places like Pelican Bay, or Youngstown – the new supermax prisons. Not because of being physically dangerous, or predators, but because they had the audacity to tell the truth in a court. Like me, they stood up for those in here that were falsely convicted, or they helped a man bring a lawsuit after being beaten by sadistic prison guards for the fun of it. Their “reward” for doing the right thing is to be branded as troublemakers and punished.
Why, in the year 2001, is there no court, no paper, no action, where an innocent person can go, as a matter of right, to prove his innocence, and be released from this man-made hell on Earth? Neither I, nor the other men described have DNA evidence, because there is no evidence to test. My identity was not in issue at my trial. All that was in issue was whether or not the woman who accused me was lying. Why would she lie? I don’t know. Maybe because I dumped her mother to marry another woman, not once, but twice. The second time was when she first made these accusations to my wife, and thus caused my wife to file for divorce. I called and confronted her and her mother over the false allegations she had made, and asked them to tell my wife the truth. Three days later I was arrested on these charges – coincidentally, on my sixth anniversary. Why? Maybe she was afraid of me because when I called, I was madder than hell. Or, maybe it has something to do with the underlying problems surrounding her having been under psychiatric care since she was seven years old. I honestly don’t know.
But what I do know is, it is impossible for me to be two places, 2,000 miles apart, at the same time, as I have now proven. What I do know is, I am innocent, I have indisputable evidence to prove my innocence, and that I have nowhere to take that proof and be heard.
I’m 49 years old (as I write this). My first parole board hearing is scheduled for May of the year 2036. The proof I am innocent has been thrown out of federal court without even being reviewed or discussed. I have spent over $300,000 so far in attorney fees, and will be spending another $20,000 within the next six weeks.
Unlike most in here, I come from a wealthy family, I am college educated, and have an I.Q. that places me high in the 99th percentile of the world population. Given an open door and the opportunity, I would leave this country and never look back.
Up until recently, I believed in our system of justice, or I would never have become a jailhouse lawyer. Up until recently, I considered myself as someone who would eventually prove himself innocent, and that I would be vindicated.
But now, I consider myself a prisoner of war, with all the duties and obligations thereof.
Justice Marshall once stated that the prisoner’s petitions of this nation were the first line of defense for the Constitution of the United States.4 That first line of defense has fallen to the likes of Senator Hatch and Senator Lott. The prosecutors, unchecked and unpunished for their misconduct by their brethren on the benches of the courts of this nation, run rampant over defendants’ rights with impunity. Fair trials, and the extreme value of the concept of innocence, have disappeared in the rush to “justice.” 80,000 is the minimum number of innocent souls living a nightmare of wrongful incarceration in this nation. The upper end of the estimate could be as high as 160,000. That is the equivalent of 80 prisons full of innocent people.
But I know that doesn’t really matter to the vast majority who read this. After all, it’s not your brother, or your son, or your father or mother who is among those unfortunate few in the vast population of 280 million.
But it just seems right to believe that we should have a place to go to be heard. It just seems right to believe if I write enough to enough people, magazines and newspapers, someone will see the value of what I have to say, and finally print it. In four years that has not happened. Maybe this time . . . maybe someone will listen.
If being innocent, regardless of that innocence being proven after trial and conviction, does not matter in this nation, then in the larger scheme of things the concept of punishing the guilty loses its meaning. If the government can take a single innocent citizen and place them in prison without recourse in the courts, then they can do it to you or one of your children also. God forbid, but it could one day be you writing an article like this one, or one of your children. One day, it could be you sitting here remembering reading this article and wondering why you didn’t look into what was said, and if it was true, do something about it, before you were labeled as “one of those” who claim they are innocent.
The free press was established to expose to the public government overreaching and lawless action, so that it would not continue to flourish hidden behind cliques of lawless elected officials secure in their power. Yet many public sources of knowledge are owned by the very persons who contribute money to elect the officials who are the cause of the issues presented herein. In particular, Gannett News Services and their subsidiaries, who have gobbled up hundreds of news media outlets, never publishes any letters from prisoners.
I saw the anonymous article printed by Playboy® from the Texas prisoner last month. I thought maybe . . .
maybe someone at Playboy® would take enough interest in what I had to say to print this also.5
Perhaps I’ve rambled too much in this. Playboy® is of course free to edit it. I didn’t. I just sat down and wrote what was in my heart. Even then, I do not know how to describe what I feel about all of this. Words are simply so inadequate to describe the despair of knowing I will grow old and die in prison for a crime of which I can prove myself innocent . . . and that no court will even review my evidence of innocence. This isn’t the country I was taught about in school. This can’t be what my friends died for in Vietnam, or why I hear Taps being played in my dreams to this day. If this is what is, then I have lived my life in a naive dream world. If this is what is, then I am ashamed to be called an American. If this is what is, God help us all.
Until next time, this is Jim Love reporting From the Front Line.
On June 12, 2006, the U.S. Supreme Court decided the case of House v. Bell, 547 U.S. 518 (2006). House reaffirms the decision in Herrera v. Collins, but also lessened the burden of proof a prisoner must carry under Schlup.
A law professor who, on the evening of the decision, had dinner with an attorney I know, had spent all day studying it, and expressed the opinion that it appeared the Court was moving towards recognizing “free-standing claims” of actual innocence by petitioners in writs of habeas corpus.
Given the present conservative make-up of the bench, after President Bush’s appointments to the federal judiciary, I don’t believe I’ll hold my breath until it happens.
The article “False Justice,” written by Chip Rowe of the Playboy® Forum, and published in July 2002, arrives at a 5% innocent percentage by determining that 4.86% of the death row prisoners in Illinois had been exonerated prior to the blanket commutation of death sentences by then Illinois Governor George Ryan.
Readers may be interested in knowing that I received a letter from Chip Rowe thanking me for sending “Collateral Damage.” I subsequently sent copies of “Once you Are Accused” and “Civics: An Advanced Course Taught only in Prison,” which follow. The core of “False Justice” seems to have been formulated from these three articles.
The Rand Inmate Survey of 2,190 convicted male prisoners in 12 prisons and 14 jails in California, Michigan and Texas found that 15% claimed they were actually innocent of their convicted crime. The survey found that the other 85% freely admitted their guilt. See, “15% of Prisoners Claim Innocence,” Justice:Denied – the magazine for the wrongly convicted, Issue 43, Summer 2009, 19.
"The prisoner's petitions in this nation are the first line of defense for the Constitution of the United States."
This statement by Justice Marshall is the reason I adopted the by-line of “From the Front Line.” See, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 at 1497 (1977).
“Collateral Damage” was originally written in January or February, 2001, shortly after I was transferred from the Southern Ohio Correctional Facility at Lucasville, Ohio, to Lebanon Correctional Institution in Lebanon, Ohio. It was not published on the Internet until 1-1/2 years later.
Once You Are Accused
From the Front Line
June 3, 2002
ONCE YOU ARE ACCUSED of a crime, the indoctrination that society receives on a daily basis attaches to you, regardless of whether you are guilty or innocent. How many times have you heard the phrase, “All of them say they are innocent,” or, “All convicts lie,” in your life? I once had a supervisor who frequently repeated these clichés to his workers. Tired of hearing it one day, I asked him to do something for me. I asked him to go to the prison record office and find out what percentage of the men in the prison had entered a guilty plea and admitted their guilt in open court. I asked him to look at the prison records and find out how many men in the prison were incarcerated on perjury charges. He quit using those phrases a couple of days later.
Statistically, 93% of all prisoners plead guilty to their crimes in open court. The numbers of prisoners incarcerated for the crime of perjury are insignificant – maybe one out of a thousand, if that.
Statistically around 5% of the men and women in prison are innocent. How I arrived at that percentage is explained somewhat in the preceding article, and in more detail in subsequent articles. This article explains why some of the innocent in prison nevertheless pleaded guilty. For the non-lawyers, I must explain the difference between actual and factual innocence.
Factual innocence means the person was guilty of some crime, but not necessarily of what they were convicted. For instance, I know a man who was convicted of a robbery for staggering drunk into a Kroger’s, stuffing meat worth $26 down his pants, and trying to leave the store without paying. In truth, he was guilty of shoplifting and subject to maybe a maximum of six months in jail, probably suspended, and a fine. In reality, he has done almost 15 years for that meat he tried to steal, without ever hurting anyone. He is factually innocent.
Actual innocence means that the prisoner did not commit any crime at all. For instance, in my case, the first three rapes for which I am serving consecutive life sentences were testified to have occurred, “The week after Christmas in 1988,” and, “at least once a month each month after the first time.” From November 17, 1988 (with the exception of three days in late May 1989 when I returned to the U.S. and then left by automobile for Belize), until July 20, 1989, I was living continuously in southern Mexico and Belize. That is actual innocence.
The phenomenon of innocent people pleading guilty is caused by institutions ingrained in the administration of justice in this country.
First, the “plea bargain” system.
Faced with shortages of courtrooms, judges and money, the present judicial system relies heavily on over 90% of all persons accused of crimes entering into a plea bargain. If everyone demanded a jury trial, the system would collapse under the sheer numbers of trials required. There would not be enough courtrooms, judges or jurors available to bring the millions of people arrested each year to trial. As a result, the government has a great interest in obtaining guilty pleas. (See, United States v. Ruiz, 536 U.S. 622 (2002))
To ensure that high numbers of persons arrested plead guilty, the prosecutors of this nation have an unwritten policy of over-indicting all persons accused of crimes. Part of this policy is enacted through the prior offense sentencing enhancements applied to ex-felons. Even a crime carrying only two or three years in prison can be extended to ten or twenty years in prison for an ex-con by the prosecutor adding a sentencing specification that the person accused was previously convicted of a felony.
This results in ex-cons accused of relatively minor crimes facing up to twenty years in prison if they go to trial, even when they are falsely accused. Whereas, even if they are innocent of the crime, if they plead guilty, the prosecutor will drop the sentencing enhancement and allow them to be sentenced to the time they would have had to do if they had been guilty. The difference is sometimes as much as 10 or 15 years. Ex-cons, faced with pleading guilty to something they did not do and doing two or three years in prison, or going to trial, facing a jury that will be told of their prior felony conviction through the sentencing enhancement, and receiving fifteen or twenty years if convicted, almost always take the guilty plea. The supposed presumption of innocence is negated by the jury hearing of their prior conviction.
Persons who have had no prior dealings with the police or the law sometimes fare even worse if they are wrongfully accused of a crime. They, like most of you, do not believe they would ever be convicted of something they did not do. They make the mistake of believing the police are searching for the truth, as opposed to a name to close out the case. They do not understand that a police officer’s primary duty is to arrest people and turn them over to the prosecution. The innocent are also systematically over-indicted in the interest of obtaining a bargaining chip to keep up the guilty plea rate.
Defendants who have committed a crime are faced with being charged for crimes much more serious than they actually did. As stated above, in most cases, the prosecution drops the over-indicted charges and allows the person to plead guilty to what they actually did. But in other cases, because the nature of the crime is especially heinous or high-profile, such as a child molestation case, the prosecutor gets stuck with the over-indicted charges and is forced to go to trial on charges the evidence did not support, but which were only intended to force a plea. Because those charges generally carry very long sentences, the defendant is forced to trial, (simply because he has nothing to lose) and frequently convicted of a much greater crime than was actually committed. The plea bargain system misfires in such a case, and actually forces to trial a defendant who, if he had been originally charged with what actually happened, would probably have entered a guilty plea.
If, however, the defendant happens to be innocent, and has no experience with the judicial system, they sometimes plead to a lesser offense offered as a plea bargain based on simple fear of being convicted of the greater charges that have been brought.
It is common knowledge in the county jails that if you force the case to trial, you will receive the maximum sentence possible. The prosecutor and the judge always punish the defendants who go to trial by maintaining the over-indicted charges that were originally intended just to scare the defendant into taking a guilty plea. Prosecutors maintain high rates of guilty pleas through it being common knowledge in the jails that if you go to trial you will be sentenced to the maximum possible sentence. In simple truth the citizens of this nation are punished for having the audacity to fully exercise their fundamental right to a trial by jury, and the system makes very sure they know it by the time they appear in court.
Thus factually and actually innocent defendants plead guilty; including those experienced with the judicial system and those inexperienced with the judicial system.
Second, the one-sided grand jury system in this nation.
Only the prosecutor presents evidence and arguments to the grand jury. In the large numbers of honest charges presented to the grand jury, and the confidence the grand jury gains in the prosecutor’s “honesty” during those proceedings, it is not hard for a prosecutor to slip in a few cases that are shaky, and obtain indictments on those also. After all, one in twenty is all it takes to generate the numbers above.
Grand juries need only find “probable cause” to return an indictment. Because only the prosecution presents evidence to the grand jury, it has been suggested some higher standard of proof would be more appropriate. The gallows humor joke in prison is that a grand jury would indict a hamburger. There are few, if any checks on
Once You Are Accused
prosecutorial misconduct in these secret proceedings. It is almost impossible to obtain transcripts of grand jury proceedings. Try it.
Third, why obtaining a conviction is so important.
Prosecutors who are charged by oath to uphold the law will sometimes go to extreme lengths to ensure a conviction in a particular case – because, if they do not, then in the next election their opponent will be pointing to the cases they lost, and to the lawsuits for false arrest the county had to pay. Further, the prosecutors have to work daily with the police on serious legitimate prosecutions. They cannot afford to alienate the police by seeking any other “truth” than the “truth” the police present to them, even when it later becomes questionable as to whether or not the right person, or the right charges, are being pursued. It is simple politics. My observations are that the prosecutors would rather keep an innocent person in prison and counteract that person’s protestations of innocence through sound bite press releases, or, more commonly, utter silence, than admit that the person is innocent, even when faced with overwhelming proof of innocence. For instance, either Professor James S. Liebman of Columbia University of New York (co-author of Federal Habeas Corpus Practice and Procedure), or attorney Barry Scheck of The Innocence Project, related in a recent PBS “Frontline” Report on Innocence that when faced with DNA evidence proving a prisoners’ innocence, prosecutors frequently come up with a “third party co-defendant” theory as a justification, even though in eight or ten years of trials and litigation, no co-defendant was ever even alluded to in the testimony presented. What is more surprising is that judges, such as Patricia Owen of the Texas Criminal Appeals Court, have accepted these totally fictitious theories to deny appeals in DNA cases.
Fourth, former prosecutors.
Defendants face former prosecutors at every stage of appeals, as the elected judges in state courts and on petition for writ of habeas corpus in federal courts. Former prosecutors are your appointed federal judges, they are your attorneys general, they are your governors, they represent you in both your state legislatures and the House of Representatives, and they are your Senators. Of course, if a prosecutor does not “play ball,” he will never see these opportunities offered.
In the last 20 years more former prosecutors have been appointed or elected as federal and state judges than at any time in the history of this nation. Some former prosecutors turn out to be fair and honest men, like U.S. Chief Justice Earl Warren. But many brought personal philosophies and agendas with them. Almost all are backed by the local Republican Party, including the owners of the major media outlets charged with reporting any wrongdoing by them. In the past 20 years the Republican Party has made major inroads in getting “conservative” right-wing judges– many of whom are former prosecutors – elected or appointed to the judiciary.
Criminal defendants face a stacked deck with the judges presiding at their trial, or reviewing their cases, usually having been colleagues for years with the prosecutors prosecuting their case. Prosecutors are assigned to judges for months at a time, and present case after case to that same judge, learning their strengths and weaknesses in the law. Judges remember their frustration as prosecutors when other judges forbade them to place inadmissible prejudicial evidence before a jury, and because of that, some defendant who was obviously guilty walked free. Those memories affect their judicial rulings when before a trial starts they have been convinced by the prosecutor that the defendant is guilty. By skewing evidence rulings, that belief can result in a jury being swayed by evidence that another judge might not have allowed into the trial. The defendant loses the presumption of innocence through biased evidentiary rulings that circumvent the right to a fair trial and a determination by the jury as to guilt based on evidence as to the crime charged.1
At this point another major ingrained practice comes into play. When the United States Supreme Court decided in 1963 that every person accused of a felony was entitled to assistance of counsel, the states were left
on their own to fund representation for indigent defendants. The compensation system set up has several serious flaws.
First, attorneys get paid based on the seriousness of the charge, whether or not they go to trial. So it is in the attorney’s personal interest for the client to plead guilty in 15 minutes, as opposed to taking the attorney away from paying clients for a two-day, or two-week, trial. The attorney receives the same compensation either way.
Second, more experienced attorneys, with thriving practices, are able to avoid taking many court-appointed cases by showing conflict with other trial dates, or a heavy caseload. Thus many persons accused of serious crimes, but unable to afford $400-an-hour attorneys who generally want 25 to 50 thousand dollars up front to take a serious criminal case, are assigned attorneys fresh out of law school as their defense counsel.2 These attorneys, new to the legal community, have little in the way of funds to investigate the cases assigned. They are struggling to make ends meet. These new attorneys are anxious to “get along” and not to make waves with judges who can break them by appointing cases to other attorneys, or by appointing cases the judge feels have a high chance of going to a lengthy trial. These same attorneys cannot afford to alienate prosecutors who solely decide in what cases they will take a plea bargain, and what cases they force to trial. A quid pro quo system develops where prosecutors “urge” these attorneys to push their clients into a guilty plea to a lesser offense in cases where the prosecution has doubts about being able to convince a jury of guilt. This is one of the best kept secrets of the judicial system. In many cases of men with whom I have talked over the years, the first time they saw their court-appointed attorney was the day they went to trial. I have met murder defendants who have talked to their attorneys for less than an hour in the nine months they sat in jail before trial. In many other cases, the first words out of the attorney’s mouth were “I think I can get you a good deal.” They didn’t even ask the man if he was guilty or innocent.
If they do go to trial, they are confronted with a prosecutor who tries criminal cases day in and day out, month after month, and defended by an attorney who makes a living doing divorces, probating wills, or writing contracts.
Appeals for indigent defendants are represented by similarly unqualified attorneys, many of whom, in Ohio, are unfamiliar with what is required by the exhaustion doctrine to preserve the errors raised for federal review. One of the more “illustrious” law firms out of Dayton, Ohio, filed an appeal for a man here last week. He brought it into the law library, where I work, and asked me to review it. One of four assignments of error was preserved for federal review. All the rest were procedurally defaulted by counsel raising the error strictly as state law errors. But that is another story for a later time.
As a result of the combined flaws in the system, a reasonable estimate is that 5% of state and federal prisoners are either actually or factually innocent. In 2002 there were over 2.1 million people incarcerated in the United States – 1.44 million in state and federal prisons and 665,000 in local jails.3 Five percent of that number is more than 100,000 innocent people.
As you read this article, somewhere down the road from you an innocent man or woman sits on a prison bunk, as I am right now, looking in despair at concrete walls and steel. Across this nation, as you read this article, 100,000 innocent men and women sit in prisons and jails. That is 50 entire prisons full. That is put in perspective when considering that the State of Ohio has 32 prisons, and about 50,000 prisoners.
I know. It will never happen to you, so why should you care? Well, I never thought it would happen to me either.
The discourse in the media concerning the numbers of innocent death row prisoners is a smoke screen designed to focus your attention on the tip of the problem and away from the larger problem below the surface. By focusing your attention on the artificially visible tip, maybe you will miss the iceberg below the surface of
Once You Are Accused
innocents sentenced to life, or what might as well be death in relation to their statistical life expectancy, who languish in our prisons nationwide.
You might see a headline in the New York Times that reads, “83 Innocent Death Row Prisoners Released from Prison,” but you’ll never see a headline that reads, “Department of Justice Admits There Are 100,000 Wrongful Convictions Nationwide.”
Until next time, this is Jim Love reporting From the Front Line.
This is explained in depth in the following law review article, Hans Sherrer, “The Complicity of Judges in Generating Wrongful Convictions,” 30 N. Ky. L. Rev. 539 (2003)
And many “accredited” law schools are not part of genuine universities, where the students would hear scholars in philosophy and logic and ethics and sociology and , , , ,
“Prisoners in 2002,” Bureau of Justice Statistics, July 2003, NCJ 200248.
Civics - An Advanced Course Taught Only In Prison
From the Front Line
June 3, 2002
Each year thousands of criminal defendants across this nation are denied their rights as citizens of the United States, in lieu of States’ rights to the “finality” of convictions.
THE GREAT WRIT HAS been described as a “Petition to the King.” It is a petition to the ultimate government authority, claiming that a citizen has been tried and convicted in violation of the “laws, statutes or treaties of the United States.” See Title 28 United States Code, Section 2241 et seq. It has been described as the last resort for relief from unlawful government action. This can be caused by local prejudices or initiated by local political pressure, such as when community outrage at an especially heinous crime endangers the rule of law by seeking the conviction of the accused rather than seeking the truth of the accusations. The basis for its jurisdiction lies in equity, i.e., what is fair.
The privilege of the Great Writ was considered so fundamental in the protection of the right to individual liberty secured in the Constitution that the Founding Fathers established the privilege in the first article of the Constitution. A petition for writ of habeas corpus is the Great Writ established in English law by the signing of the Magna Carta at sword-point by King John of England on June 15, 1215 AD at Runnymede, and adopted into Anglo-American jurisprudence in Article I, §9, cl. 2 of the Constitution:
“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.”
The United States of America is a republic. Its citizens hold a dual citizenship. They are a citizen of the state in which they reside, and a citizen of the several states, or of the United States. Those facts affect how the Great Writ is enforced in this nation because the states and the federal government, by law, are considered separate sovereign states controlled by a paramount covenant, i.e. the Constitution of the United States.
I’m about to teach you a new word (assuming most of you are not attorneys.) This new word, if you are ever accused of a crime, is the most important word you will ever know. Then I am going to show you how the implementation of the concept underlying that word by the federal courts deprives prisoners of their rights as a citizen of the United States, deprives them of the privilege of the Great Writ, and is hampering the evolution of justice in the United States.
The word is “comity.” Black’s Law Dictionary defines comity as:
“Courtesy; complaisance; respect; a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Recognition that one sovereignty allows within its territory to the legislative, executive, or judicial act of another sovereignty, having due regard to the rights of its own citizens. In general, the principle of ‘comity’ is that courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect.”
This “deference” is applicable not just between the states, but also between the federal judiciary and the states when a state criminal conviction is being reviewed in federal court upon petition for writ of habeas corpus. As explained below, this “deference” can, and often does, abrogate and override the constitutional rights conferred upon the prisoner as a citizen of the United States.
Civics – An Advanced Course Taught Only In Prison
From the concept of comity has evolved both the exhaustion doctrine and the procedural default doctrine of habeas corpus jurisprudence.
The exhaustion doctrine requires that any federal constitutional error, committed in a state criminal conviction, must be “fairly presented” to each available state court of appeals prior to being raised in federal court by way of a petition for writ of habeas corpus. To “fairly present” a claim, the complete “factual basis” and the explicit federal constitutional basis must be raised and argued in each state court. This process begins at the trial by “contemporaneous” objection to the error by trial counsel, continues in the direct appeal as an “assignment of error,” and on discretionary appeal to the state’s highest court, again as a separate “assignment of error.” Failure to meet the stringent requirements of the exhaustion doctrine in any state court requires the dismissal of the habeas corpus, even if only one of fifteen errors has not been “exhausted.” This dismissal sometimes allows the prisoner to go back to state court and file the issue in the proper court, or choose to abandon the error by amending the writ to eliminate it.
Unfortunately, because states place time limits on filings, or adhere to the doctrine of res judicata, most issues are not amenable to being returned to state courts. Even if they are, the 1996 Anti-Terrorism and Effective Death Penalty Act pushed through Congress by Senators Orrin Hatch and Trent Lott now allows the federal court to dismiss unexhausted claims with prejudice without allowing the prisoner, if able, to return to the state courts to exhaust the claim. The amendments to the habeas corpus statutes in that act apply to both death penalty cases and non-death penalty cases.
Res judicata is a doctrine that is strained beyond its literal definition of “a thing decided.” It is enforced to mean, “could have been, or should have been, raised in the prior proceeding.” It is a tool intended to advance the orderly administration of justice and prevent a party from raising numerous separate appeals as to a judgment. In other words, “If you have something to say, say it now and say it all at once in this first appeal, because we will not hear at a later date anything you should have said now, and didn’t. We will consider it res judicata.”
The doctrine has a valid goal. It is meant to prevent courts having to re-visit a case continuously as the loser finds new issues that could have been, but were not, raised on appeal. It promotes the “finality” of judgments in civil cases. While that may be valid in civil suits, the author questions its application in the criminal context where an individual’s right to liberty is at stake. But the states circumvent this legitimate questionable aspect by labeling all challenges to criminal convictions outside the first direct appeal (post-conviction actions) as “civil” or “quasi-civil” actions. This is a legal fiction, because the post-conviction attack is directed to challenging a criminal conviction’s constitutionality.
The above gives rise, in part, to the second doctrine called the procedural default doctrine. You will not find a definition for the procedural default doctrine in Black’s Law Dictionary because it is defined in thousands of cases and not conducive to any one precise definition. To sum up those cases, in the context of a writ of habeas corpus, a procedural default arises if:
1.) There is a failure to meet the requirements of the exhaustion doctrine and there is no state court remedy available, either because of time limits expiring, or the doctrine of res judicata preventing the issue from being addressed on the merits by a State court;
2.) The defendant’s attorney failed to present the error in a manner that enabled the state courts to rule on the merits of the federal constitutional claim. This includes filing a post-conviction action untimely, or presenting the issue as an error of purely state law in the direct appeal, as opposed to claiming it was also a violation of a federal constitutional right. It includes the failure of an attorney appealing to identify and raise an error at all. It includes the failure of the trial attorney to object at the trial to an error, or objecting on the wrong legal basis. It includes a defendant who was forced to raise the error in a post-conviction action because the attorney failed to raise it on appeal. It includes a defendant who could not obtain the transcripts or documents
needed to file in time to meet the deadlines imposed by the state courts, and thus had to file untimely. It includes hundreds of miniscule procedural errors. The outright nitpicking encompassed by this rule is essentially indescribable. I can only convey it by example. For instance, one man I know was defaulted both in state court and in federal courts on six serious constitutional violations. Why? He failed to place the trial court case number on the first page of his Application to Reopen below the court of appeals case number, even though the trial court case number appeared on every document in the court of appeals file in the case, and even though he filed to correct the error within a week of being informed of it. The U.S. District Court, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. Supreme Court dismissed the writ without ever reaching the merits of his claims. I know the errors raised were arguable; I raised them for him. He was transferred to another prison, and when I sent him what he needed to have typed and filed, he simply forgot to place the trial court number on the document. His conviction contained serious constitutional flaws that have never been, and will never be, reviewed by any court.
Justices Blackmun, Marshall and Stevens, in Coleman v. Thompson, 111 S.Ct. 2546, 2569 (1991), observed the Supreme Court rulings on the procedural default doctrine were “creating a Byzantine morass of arbitrary, unnecessary and unjustifiable impediments to the vindication of federal rights.” These procedural errors can occur at any stage of a criminal case being litigated in state courts, and any of them will totally preclude federal review of the error or the vindication of federal constitutional rights by a federal court on petition for writ of habeas corpus.
Of all writs filed by State prisoners, the following percentages are dismissed:
57% for failure to exhaust state remedies;
12% for procedural default;
7% for failure to meet court deadlines (this figure has changed since the 1996 AEDPA placed a one-year time limit on writs);
6% for failure to raise cognizable issues (State law issues);
6% for abuse of writ (not raising issue in first writ);
4% on government’s Motion to Dismiss;
3% as a “successive” petition (filed same issue twice);
3% as a “successive” petition (filed same issue three or more times)(or new claim not held retroactive);
1% because issues are “moot” (should be included in expired sentences);
1% are granted on the merits;
1% are remanded to state courts.
See, “Federal Habeas Corpus Review, Challenging State Court Criminal Convictions,” Bureau of Justice Statistics, Department of Justice, September 1995, No. NCJ-155504, p. 17 (tracking 5,167 habeas cases). Note: Discrepancy in percentages is unexplained by the Bureau of Justice Statistics.
The doctrines deriving from the principle of comity have rendered the Great Writ a paper tiger.
Why are there so many technical procedural defaults?
Criminal cases account for a total of 5% of all litigation in the courts of this nation. Of all criminal convictions, only 14 out of every 1000 (1.4%) are litigated to the point of a federal petition for writ of habeas corpus being filed in the case. (See, NCJ-155504.) Of the 1.4% of petitions that are filed, only 4% are represented by an attorney. Thus 96% of all writs are filed and litigated by the prisoner, assisted by a jailhouse lawyer.1 So in only 4% of 1.4% of 5% of all litigation does an attorney become involved in litigating a writ of habeas corpus. This is because the criminal defendant, if he had any money to begin with, has spent it all for his trial and appeal attorneys, and is financially destitute by the time the case reaches federal court.
Civics – An Advanced Course Taught Only In Prison
As a result, only 28 out of every 1,000,000 cases filed in the United States is a petition for writ of habeas corpus represented by an attorney. Those are almost exclusively death-penalty cases. It is rare to find an attorney who has litigated a federal writ of habeas corpus, and the majority of trial and appellate attorneys, whether retained by the defendant or appointed by the state for indigent defendants, have no litigation experience with either the exhaustion doctrine or the procedural default doctrine as applied to a petition for writ of habeas corpus.
This lack of experience results in over 79% of the appeals litigated by these attorneys in the State courts being deficient for purposes of a federal writ of habeas corpus and the requirements of the Exhaustion and procedural default doctrines.
Most of these attorneys raise the errors in the trials they are appointed to represent as state law errors, and fail to raise or preserve the parallel federal constitutional errors arising from those state law errors.
When the defendant arrives in federal court, the federal judge tells the defendant that a federal court does not adjudicate questions of state law, and dismisses the petition under the comity considerations underlying the exhaustion and procedural default doctrines, finding the issues procedurally defaulted. This is done after the state attorney general invokes the procedural default caused by the State appointing unqualified attorneys to the defendant’s state appeal.
This is a problem because the federal constitutional errors dismissed as being procedurally defaulted are not necessarily frivolous or minor errors. Some are serious violations of the Constitution. But these unconstitutional convictions are allowed to stand uncorrected due to the judge-made “comity” policies in effect between the federal government and the state governments.
Each year thousands of criminal defendants across this nation are denied their federal rights as citizens of the United States. They are unconstitutionally convicted under state laws and deprived of their federal rights through “federalism” policies, and the exhaustion and procedural default doctrines giving “deference” to the state procedural rules over the substance of the constitutional violation. Most distressing is that many of these procedural defaults are in actuality created by the State to begin with and totally beyond the control of the defendant. See: “Ohio Legal Notes,” From The Front Line by Jim Love, The Challenger, June 2001 (withholding of transcripts from prisoners causes state procedural defaults); “Once You Are Accused” (unqualified court-appointed attorneys cause convictions of innocent defendants.)
We are either a nation ruled by law administered equally and fairly to all citizens accused of crimes, or we are fifty separate judicial sovereigns who administer equal justice only to those criminal defendants blessed with the luck of the draw by being appointed an attorney who has previously litigated habeas actions and knows what is required by the exhaustion and procedural default doctrines. If we are to be one nation then justice must be administered both fairly and equally. As stated by the U.S. Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976), a defendant’s interest in liberty and the state’s interest in the correctness of criminal adjudications overlap, minimizing the state’s interest in the finality of an unconstitutional conviction.
The policies of comity which gave rise to the exhaustion and procedural default doctrines, as they are presently being enforced, are abrogating the rights of the citizens of the United States to be free from unconstitutional convictions, and having the secondary effect of preventing the evolution of the laws of this nation.
If unconstitutional state convictions continue to remain uncorrected, the government officials who caused the constitutional errors to occur lack any incentive not to repeat those errors in future trials. The U.S. Supreme Court, in Teague v. Lane, 109 S.Ct. 1060, 1073 (1989) quoted Desist v. United States, 89 S.Ct. 1030 (1969), for the principle that “[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts
throughout the land to conduct their proceedings in a manner consistent with established constitutional standards.” (Harlan, J., dissenting.) These complicated procedural requirements have removed the writ as a threat in 80% of cases. That, in my opinion, attenuates the “threat” to the point of being non-existent.
Substantive errors of constitutional magnitude cannot continue to be swept under the carpet by dismissing them on technical procedural grounds. Just as a criminal defendant is no longer able to have their conviction reversed on technical errors committed by the government (and those technical reversals have been done away with, regardless of what you are told), the states should not be allowed to get away with violating the Constitution by hiding substantive violations behind technical procedural defaults and technical dismissals of constitutional errors.
Substance over procedure or, as it is called, “adjective law,” is what the fundamental concepts of fairness and equity between the government and its citizens require. Until the technical playing field is leveled, countless unconstitutional convictions will remain the norm, and the law will continue to stagnate in 18th-century concepts designed to protect the status quo of those in power at the cost of individual liberty and truth.
Until next time, this is Jim Love reporting From the Front Line.
1 Percentages obtained from Federal Habeas Corpus Practice and Procedure, by Liebman and Hertz, supra.
Some of the original formatting was imported with the copy below and I cannot left align or center individual lines of text without all the text following. I have centered the entire book because it appears better that way in my opinion. Formatting for charts included in the book have been corrupted. Those charts begin in chapters after page 89 of my book and those chapters, including the charts, will be posted in installments. One chapter, "All the Kings Horses and All The King's Men..." is available at the "More" button on the home page discussing Court Reform.
Jim Love 3/27/17
A Critique of the Judicial System of the United States
By James F. Love IV
James F. Love IV
Copyright © 2002-2009 by James F. Love IV
First Printing (December 2009)
All Worldwide Rights Reserved
No part of this book may be used or reproduced in any form or by any means, or stored in a database or retrieval system, or transmitted by any means, without prior written permission of the author except in the case of brief quotations embodied in critical articles and reviews. Making copies of any part of this book for any purpose other than your own personal use is a violation of United States copyright law.
Limit of Liability/Disclaimer of Warranty:
This book is sold as is, without warranty of any kind, either express or implied, respecting the contents of the book, including but not limited to implied warranties for the book’s quality, performance, merchantability, or fitness for any particular purpose. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. James F. Love IV shall not be liable to the purchaser or any other person or entity with respect to liability or loss, including but not limited to special, incidental, consequential, or other damages, caused or alleged to have been caused directly or indirectly by this book.
Cover portrait by Pedro Arce. Copyright © 2006 assigned to James F. Love IV.
Table Of Contents
Collateral Damage.................................................................................................................... 8
Once You Are Accused............................................................................................................ 17
Civics - An Advanced Course Taught Only In Prison............................................................ 22
Prisoners Have No Right to Accurate Records...................................................................... 27
Salem Witch Trials Of The Moment....................................................................................... 30
Why “Megan’s” Laws Are Unconstitutional And Many Sex Offense Convictions Doubtful. 39
“A Rose By Any Other Name ”.............................................................................................. 45
With Liberty And Justice For All........................................................................................... 52
Let’s Get To The Truth........................................................................................................... 56
Taking Advantage of Human Nature, Or Meet Judge Slick Willy........................................ 60
National Innocent Prisoners Project (NIPP).......................................................................... 66
A Proposed Resolution Of The Vietnam Veterans Of America.............................................. 69
Politics And Prisoners............................................................................................................. 73
The Rule Of Law: Protecting The Guilty To Protect The Innocent....................................... 80
As Gulliver Slept..................................................................................................................... 83
All The King’s Horses And All The King’s Men..................................................................... 90
What John Ashcroft Has Done: The Good, The Bad And The Ugly...................................... 98
Why There Is An Evolving Unfairness In The Courts Of The United States........................ 103
Court “Orders” Written Covertly By Prosecutors Cover-Up Errors In Criminal Prosecutions 107
“. and in the darkness bind them.” – The Story Of John Wesley Frazier............................ 111
Man Two Thousand Miles From Alleged Rape Scene Fighting For New Trial.................... 122
“Absolute Immunity Corrupts Absolutely,” Or, The Winning Loser................................... 128
2005 Streamlined Procedures Act......................................................................................... 135
The Undermining Of The Constitution And American Ideals............................................... 144
System Failure....................................................................................................................... 159
Table of Cases Cited.............................................................................................................. 164
About James F. Love............................................................................................................ 172
THIS BOOK IS DEDICATED to my father, who has built a $200,000,000-a-year corporation starting from nothing, and who has given me his support throughout my life; to my mother, whom I’ve driven crazy doing the things I cannot do myself from prison; to my stepmother, who has a good heart that is as big as the world; to my wife, Elizabeth, from whose love I have drawn my strength for so many years, and who taught me the meaning of love; to William R. Gallagher, my attorney, who has an undying passion for justice; to Rod Kee of the Innocent Inmates Association of Ohio, Inc., who was the first to publish my case, new evidence and articles; and to all of the tens of thousands of men and women who are wrongfully convicted and deprived of their liberty every year in the United States. Almost three hundred of those men and women are listed in the chapter, Salem Witch Trials Of The Moment. Those innocent men and women were incarcerated for more than 3,850 years before their exoneration and release from prison.
More importantly, this book is dedicated to the citizens of the United States, and their posterity, in the hope of bringing the need for judicial reform into the forefront of political debate.
This book is further dedicated to the late Justice Thurgood Marshall of the United States Supreme Court who has been an inspiration for all of my works. Justice Marshall, Justice William Brennan, and the men and women who sit as judges on the courts of this nation, in their opinions regarding the basic freedoms secured by the Bill of Rights amended to the Constitution of the United States, have taught me the most important lesson of my life. That is:
“Without meaningful access to the courts, all other rights become meaningless.”
Put another way: “[A] [prisoners] right of unfettered access to the courts is as fundamental a right as any other he may hold. All other rights of a [prisoner] are illusory without it …” Adams v. Carlson, 488 F.2d 619, at 630 (7th Cir. 1973).
November 28, 2009
By William R. Gallagher 1
I first met Jim Love in 1995 after he had won his pro-se post conviction based upon Ineffective Assistance of Counsel. In Ohio, it is rare that anyone gets a hearing on such petitions let alone wins one. More than rare, if not unprecendented, is to win such a lawsuit pro-se from prison. Unfortunately, Jim was convicted on retrial. His convictions were reversed for a second time in 2006 and the indictment dismissed. The prosecution appealed the dismissal of the indictment and a six-year battle in the courts concluded with the partial Granting of a Federal Writ of Habeas Corpus, followed by an offer of a plea deal to time served. I am now proud to say he has been my client since 1999. Together we have been to the U.S. Supreme Court and back. Despite unqualified proof he was out of the country at the time of his alleged crimes, the State of Ohio insisted up until a U.S. Federal Court Granted partial relief, and approved appeal to the United States Court of Appeals for the Sixth Circuit, that a retrial would take place.
Over the past decade and a half, I have represented a number of fellow inmates pro bono at Jim’s urging. Most have unique circumstances which set their cases apart from the “standard” post convictions petitions. What all have in common is they are on the receiving end of a system intent on maintaining the status quo versus admit what most fear. The system in place has very little to do with “Justice.”
Jim Love’s book takes on subjects many lawyers will admit in confidence or at cocktail parties but will not say publically. The system has been overrun and our federal judges are unable to keep up with the cases before them. In analyzing case filings, briefing trends and applying a little common sense, Jim Love comes to a conclusion which seems credible and possibly unassailable; Federal Judges must defer much of their reading, analysis, and maybe writing, to law clerks or staff.
Overworked judges, with caseloads too numerous to handle, rely more and more on non-judicial staff to sift through claims, filings and exhibits. Judges have clerks reading transcripts, opinions, case law and producing memorandum summarizing, analyzing and possibly even deciding legal disputes. Class Action lawsuits, substantial legal disputes over property, money and people are in such numbers that judges are overwhelmed with the sheer volume of paper involved. Add to those the claims of prisoners asserting their trials were constitutionally inadequate, and you are left with a system in serious need of an intervention. But until then, accommodations seem to have been made in order to handle the volume.
Love presents a case that if true, undermines the reasons our Founding Fathers favored life tenured judges. They wanted politics removed from judicial determinations. With law clerks having intimate influence on decisions rendered in federal courts, the argument is politics has reentered the court system. Law clerks concerned with future employment and advancement now consider those when analyzing, drafting and presenting legal opinions in federal courts. Politics of a different sort, but politics nonetheless. Such a system exposed would substantially undermine the public’s confidence in the decisions rendered by our courts.
Love also presents compelling arguments on just how many innocent people are locked away in our prisons. With facts and figures which seem credible, there is an estimate that over 100,000 men and women are incarcerated and attempting to attract the attention of federal judges through habeas filings. Unless our courts are well equipped, resourced and able to properly review, analyze and respond to these claims, many, if not most of these innocents are lost.
In addition to highlighting the areas of our court system in greatest need of reform, Love does offer some solutions worth considering. One is to redistribute our federal judges based on our census numbers. Population
centers generally have more lawsuits, crimes and other litigation than sparse areas of our country.
This book will literally have you scratching your head wondering how did our courts come to this? At what point did a system intent on correcting mistakes transform into one which turns a cold shoulder to the cries of the innocent and victims of unfairness or worse? There are clearly more questions which result from reading this book. But I believe that is the author’s intent.
1 William R. Gallagher was Chief Trial Counsel for the Chicago Public defender’s Office for eight years before joining with attorney Hal Arenstein in Cincinnati to open the law firm of Arenstein & Gallagher.
Mr. Gallagher was awarded the Robert Heeney Memorial Award by the National Association of Criminal Defense Lawyers in 2011. The National Association of Criminal Defense Lawyers, of Washington, D.C., gives the award nationally to one attorney, each year, whose outstanding work in the field of criminal justice exemplifies the goals of the organization, the motto of which is, “Liberty’s Last Champion.”
Mr. Gallagher is a former member of the Board of Directors of the National Association of Criminal Defense Lawyers, and past President of the Ohio Association of Criminal Defense Lawyers.
Author’s note: The above Foreword was sent to me while I was still imprisoned. I had been forced to sue the original publisher of this book after he failed to maintain contact with me after the book was published in 2009. That same publisher had also written the first Foreword, and copyrighted it, forcing me to remove it in this Second Printing.
Mr. Gallagher had read the book and graciously agreed to write a new Foreword. During those last years in prison, I had caused a medical/dental lawsuit to be filed against Ohio. That state-wide Class Action (Fussell v. Wilkinson, for anyone interested), cost the State of Ohio $100,000,000.00 a year in improved medical and dental treatment for all of Ohio’s 50,000+ prisoners. Two law students who visited me during the course of that lawsuit, from The University of Cincinnati, commented, upon learning that Mr. Gallagher was my criminal attorney, that Mr. Gallagher had the reputation of being one of the top three Criminal Trial Attorneys East of the Mississippi River… That covers a lot of territory.
He even taught me something about my case that I had missed, or perhaps not focused upon when I should have. He said the alleged victim had referred to the time frame at trial, by referencing it to other events in her life that could be tied to specific dates, a total of 26 times during her testimony. After I had proven that time frame was impossible, and was awaiting a third trial, Mr. Gallagher told me he was looking forward to the trial because he felt her position (the prosecutor decided he would simply change the dates by 8 months 16 years after the first retrial), was impossible for her to maintain under cross-examination.
He is one of the founders of the Innocence Project at the University of Cincinnati. As he mentioned above, we worked together on several cases for men I had met while working in Law Libraries for over eleven years, and doing legal work for over 20 years. He took these cases for free.
Three weeks ago I had dinner with Bill and we discussed my book and me becoming more active in advocating judicial reform. Last week I had a two-hour meeting in Chambers with U.S. Senior District Court Judge Walter Herbert Rice. Up until then I had been hesitant about even republishing this book. Honestly, I am embittered not only against the system, but against you, the American People, because you do not seem to care enough about injustice. I had reached a point of where I did not care if you learned what I know. Further, it would make me an even bigger target.
But I decided it has to be done. Too many of my friends in prison have told me it would be unjust for me to not put this book back in print. Too many attorney friends, besides Bill, have been very vocal in support of
my thoughts, experiences and knowledge being shared with society. Another consideration was the fact that two universities have expressed interest in using this book as part of the curriculum in their Criminal Justice courses, Ethics courses and Law Schools.
When I was released in November, I had no place to go after 25 years. I moved in with a friend, Terry Touvell, and his wife Romona. (Moe). Terry was my Pinochle partner 25 years ago at Warren Correctional Institution, and we walked the yard together at Lucasville in the 90’s. As I sat here tonight, my first night on the journey to republish, typing the first few updates and edits, I asked Terry to come upstairs. I had just typed Bill Gallagher’s new Foreword into my Mac and the high praise from Bill had brought me to a stop. I asked Terry to read Bill’s Foreword. I had forgotten all that Bill had said. I asked Terry, “Am I that good?” Terry did not hesitate, he said, “Yes. You have the ability to focus on a question until you define the problem, then continue until you find the solution. Few people can do that.” 2
I worked on prisoner’s cases for over 20 years. I literally held their life in my hands. Over that period of time I learned a lot. Maybe it’s like growing old. You look at yourself in the mirror each morning, and because you see yourself each morning, you don’t really notice yourself growing old. It’s not until someone breaks out the High School Year Book that you recognize what has been staring you in the face for so long.
Regardless, for attorneys Pete Rosenwald, Nancy Robison, Greg Cohen, and all the others that have urged, and sometimes badgered me to republish, here it is. I have updated some of the statistics, although the originals are still valid. I have changed some sentences I was unhappy with (an authors’ prerogative), and added some cases or cites for clarity for those who are detail minded.
One last thing you need to know. This is the beginning, not the end. I am going to build a website, and start a political PAC for all ex-cons. An attorney friend, who was convicted of a felony, will be the head of it. We will be a non-profit formed for the purpose of advocating judicial and prison reform.
Once it starts I need one thing from all you ex-cons. I need one dollar a month. It will go into escrow and be used to hire lobbying firms, investigators and to oppose politicians, like Representative Smith of New Jersey, who make their career on the backs of cons and ex-cons. The organization will be named “Article III.” This is after Article III of the Constitution of the United States.
There are 30 million ex-cons in the United States. Who better knows what is wrong with the judicial and prison systems?? 30 million strong we can change elections and fix the system.
I told a cop that. You know what he said? “Wouldn’t that be ironic.”
January 30th, 2016.
2 On March 26th, 2016, both Terry and Moe were killed in a motorcycle accident. We had been friends for over 25 years. His family listed me as his brother in the Obituary. I still live in his home.
I HAVE WRITTEN THIS BOOK to sound an alarm. Each day you pick up a newspaper, or turn on your TV, only to hear of some prisoner being released on new DNA evidence proving his or her innocence. Some of these prisoners have been in prison for decades. Their regular appeals have all long been decided against them, and their wrongful convictions upheld in court after court. Why were these cases of injustice not discovered or exposed as wrongful convictions during the regular appeal process? Why have these cases sat for years on some judge’s desk, even after the new evidence proving innocence was submitted to the courts, before the prisoner received a decision restoring to them the liberty which had been stolen by our society? The answers to these questions, and what can be done to correct the problems contained in the answers, are in this book. You may not like the messenger, but if you ignore the message because of that, you will do a disservice to yourself and to America as an ideal.
Seven years ago I began writing articles critical of the manner in which the courts decide appeals of criminal defendants. Not all of the articles I have written are contained in this book. When I started this project I was painfully aware that the average citizen has little knowledge of our court system. Most know only what they see on TV or read in the newspaper, and that information is so misleading and incomplete as to almost constitute propaganda. I was also aware that the failings I had observed in the court system resulted from a gradual deterioration in the quality of justice due to an ever increasing caseload upon which judges were being unfairly required to decide.
The following articles address many separate areas of the court system and the law, as it has evolved since the year 1789, when the court system was first designed. My articles further identify a basic flaw in the design of our court system that was a product of a misunderstanding by our forefathers of the differences between the system of government then present in Great Britain, and the federal republic they designed. There is a degree of redundancy in my articles. This is because the same structural weakness may have more than one cause, or affect more than one area of law, influencing the overall fairness of our court system. If I had attempted to discuss in one article, each and every problem which either caused, or resulted from, the central problems, two problems would have arisen. First, the article would have been so complex as to be unmanageable. Second, much of the background knowledge needed to understand the more complex interactions would have detracted from the main points. I would have been constantly digressing to explain legal terms or practices, and the article would have resembled a jigsaw puzzle that only a legally trained mind would have been able to grasp in one sitting.
Instead, I decided to write a series of articles that build one upon the other, progressively introducing a larger concept in digestible pieces, then pulling all the pieces together at the end. Combined, my articles constitute a treatise on our judicial system. Legal terms, which are defined in earlier articles for one subject, are used in later articles addressing collateral issues that contribute to the larger problem defined in the closing articles.
There is a method to my madness. I have written these articles, from the first ones written around 2001, with the intention that they would all come together to create this book. I have written them in such a manner that the combined articles would educate the reader to be able to comprehend the larger problems exposed in later articles. The crippling problems are created by a lot of smaller problems interacting.
This book is about something larger than any individual. It is about meaningful access to the courts in our nation – a birthright of the American people – being denied to those most affected by that denial. It is about the growth and evolution of our laws being restricted by inadequate human and physical resources and facilities. Although I have described my personal plight at the beginning and end of early chapters, or used it as an
example in some instances, the heart of this book – from around Chapter 3 to the end – addresses a much larger injustice and deception than anything that could happen to me personally. As I stated in one of my articles, it is not what was done to me that motivates me, it is what was done to me with which I take issue.
I want to thank Professor Brian Firth of Bronxville, New York and Hans Sherrer of Seattle, Washington, for all their hard work in doing the editing which it was impossible for me to do on this – as Professor Firth calls it – steam powered typewriter. I also wish to thank David St. John of Elderberry Press for introducing me to Professor Firth after reviewing a few of the following articles. While our initial agreement was that I would pay Professor Firth $15.00 an hour for his editing services, once he started reading what I had written, he told me not to worry about paying him, and went ahead full speed completing the manuscript, trusting me, a prisoner he had never met, to pay him when I had the money. That type of trust from a member of the public is a rare commodity for a prisoner to receive. It restored my belief in what I have done and what I have to say to the American people as something that is worth all the time and effort that has gone into writing this book.
Having rattled on long enough, it is time to allow you to turn the page.
The following treatise contains my heart and soul, but more importantly it contains knowledge that affects every American and the future of our nation. For without fairness and intellectual honesty from our courts, the Constitution of the United States, and this nation, will not be more than a footnote of history in the epic saga of the human species.
With Liberty And Justice For All
From the Front Line
December 29, 2002
No government has a legitimate interest in the “finality” of the conviction and imprisonment of an innocent person.
IN CHIP ROWE’S ARTICLE “False Justice”, published in the July, 2002 issue of Playboy®, he arrives at a figure of 100,000 innocent prisoners incarcerated in the United States. He arrived at that number based on the percentage of death row prisoners in Illinois who have now been exonerated by DNA evidence – which is roughly 5%.
That makes sense when you think about it. An automobile engine, even when finely tuned, only reaches an efficiency of 35% in converting chemical energy to mechanical power. The judicial system, involving human judgment, must have some error rate and cannot be 100% efficient, as the recent DNA exonerations have clearly shown. If anything, claiming a mere 5% error rate may be overly generous.
Yet, the United States has no law, no court forum, no commission or panel where after a prisoner’s appeals are exhausted, he or she can present evidence of a DNA or non-DNA nature that proves their innocence, and obtain relief from their wrongful conviction as a matter of right. Once the time limit for filing a Motion for New Trial expires – a time limit as short as ten days in some States – there simply is nowhere to go with the evidence and have it heard as a matter of right. All avenues of relief are totally discretionary. [Authors note: The North Carolina Innocence Inquiry Commission began operating on January 1, 2007. As of September 1, 2009 the Commission has not aided in the overturning of a single person’s conviction.]
In federal courts, as I was told when I presented my evidence proving I am innocent, proof of innocence is considered irrelevant in proceedings governed by the habeas corpus statutes.1 The courts refuse to expand the record with newly discovered evidence of innocence, or even to consider the question, unless, of course, the prisoner doesn’t have any evidence proving innocence. Then the court will comment on the fact that “petitioner has not provided any evidence he is innocent of the crimes charged.” Today’s courts seem to take the easiest road to affirming the conviction, even if it means ignoring the truth. While a lack of proof of innocence is used against habeas petitioners, newly discovered proof of innocence is ignored.
Worse yet, prisoners hampered by a lack of financial resources, deprived of direct access to the Internet and restricted to being able to purchase only a fixed number of envelopes in prison commissaries, are unable to mount an effective campaign informing the public and media of their evidence of innocence. Any support they receive is uncoordinated and generally not readily available for concentration on sympathetic organizations.
Innocent prisoners face two major problems. First, proving their innocence after conviction involves obtaining that evidence while incarcerated with little or no help. Second, they must be able to pay to photocopy and mail not only the evidence obtained, but copies of the transcripts of the trial wherein the testimony refuted by the new evidence is available for comparison by interested parties or organizations. Prisoners, faced with skepticism at every turn, are hampered by the physical logistics and financial cost of “marketing” their case to dozens of attorneys and organizations, hoping one of them will have an opening and funds to take up the prisoner’s cause.
But that may be changing with web-sites like PrisonerLife.com and Innocent Inmates Association of Ohio, Inc. (IIAO) (www.innocentinmates.org).
With Liberty And Justice For All
In January 2000, Mr. Rod Kee of Olmsted Falls, Ohio, formed the IIAO, a non-profit organization. He had a brilliant idea that came to him after an old friend who had been convicted of a rape many years ago contacted him from prison asking for help. The friend, and his new cellmate, both had proof obtained after their convictions showing they were innocent of the crimes charged. They asked Kee to assist them in placing their proof on the Internet: they wanted the public to see their proof and judge for themselves. They hoped by placing the actual transcripts and proof on the Internet they could gain support, and draw so much attention to their plight that they would be able to win their freedom. Sometimes judges must fear adverse publicity before they will really look at a prisoner’s case, actually read the trial transcripts, and properly exercise a discretion informed by personal knowledge as opposed to what the state prosecutor “urges” them to do, based on what the prosecutor says the case’s facts are.
Kee responded that if they could convince him of their innocence he would create a website for them and publicize their case. What he read concerning their cases appalled him. He concluded the government was ignoring the truth, and trying to ignore the evidence proving these two men were innocent. Kee was outraged at the injustice evidenced before him in government documents, and the stonewalling by the judges and prosecutors involved when presented with the new evidence.
The IIAO asks of the prisoner only one thing – the prisoner must supply hard evidence and documents proving he or she is innocent. If the prisoner can do that, the IIAO will, at no cost, scan in and publish the actual documents and transcripts proving the prisoner’s innocence. IIAO will also write and publish a short description of the case and why the evidence proves innocence, with links to the transcripts and evidence in the story.
It is important to note what the IIAO does, and what it does not do. It does not find an attorney for prisoners. It is, in fact, in serious need of donations to continue operations at its present level. 2 It does not actively advocate for the prisoner by contacting media, attorneys, or organizations such as the ACLU. What it does do is overcome the financial barrier of photocopy and mailing costs, and provide an organized presentation of the case and proof of innocence online at a web-site address to which the prisoner can refer attorneys and organizations when asking for their assistance by letter.
This is an idea whose time has come. Every state should have an innocent inmates association website where the tens of thousands of innocent people imprisoned in this country can present their proof of innocence for the world to see and independently judge. These men and women are the collateral damage of the War on Crime. They are the cases that fell through the cracks in the system.
Today, on John Walsh’s show, I heard both Walsh and a prosecutor from New York comment, in mocking tones, on “all the people in prison who claim to be innocent.” I’ve heard this sound-bite propaganda cliché said so many times, in so many different ways, by so many prosecutors, judges and victim’s-rights advocates, that it turns my stomach. About 95% of all prisoners enter a plea of guilty in open court, and as a jailhouse lawyer with many years of experience, and winning three aggravated-murder reversals for inmates I assisted since 1995, I can tell you very few prisoners claim innocence in a serious conversation. Walsh, and others like him, create a “boy who cried wolf” mentality in the public at large. The other cliché, which I also hear back-to-back with the first cliché, is, “all prisoners lie.” Few are incarcerated for perjury in this nation. The simple truth of the civil complaints filed by prisoners, and reported each month in Prison Legal News (PLN) shows “all” prisoners do not lie. 3
For that 5% there is no “equal justice under the law.” There is not even a law that contemplates justice for the wrongfully convicted. They, and I, have no place to go to obtain justice. The court doors are shut to us, worse than shut, nailed closed with hordes of prosecutors, police and judges leaning against the inside of the door, shouting, “GO AWAY!”
This article is written for the non-incarcerated readers. If you are interested in starting a chapter of the innocent inmates association web-site in your state, or donating to this very worthy cause and landmark innovative idea and organization, contact Rod Kee at his web-site at http://www.innocentinmates.org/.
I was the 27th prisoner for whom Mr. Kee created a website, after reviewing hundreds of cases for Ohio prisoners over the past two years. In one cellblock in my prison alone, he has rejected five cases because the men could not satisfy the organization’s standard of proof of innocence. He has worked diligently on nothing but this organization for two years. Kee, and the organization he has founded, is deserving of the utmost respect and support from all of us working to improve the system of justice in the United States.
Until prisoners are freed from the financial cost of merely seeking assistance from wrongful convictions, they are unable to tell their story to the world. To an innocent prisoner who has documentary proof of innocence, there is no greater barrier than being unable to pay the cost of photocopies and postage needed to present the case and evidence to attorneys and civil rights organizations. Particularly when the prosecutor can simply issue a press release ridiculing the prisoner’s claim of innocence, to dissuade public interest.
Think about this. In two years, working alone and with a few volunteers, Kee has uncovered 27 cases in Ohio where prisoners have hard, convincing proof of their innocence, so much so as to convince him to spend thousands of hours building web-sites and scanning transcripts and documents for those web-sites. If you multiply that same effort by establishing an innocent inmates association in each state, in two years’ time there would be 1,500 web-sites showing incontrovertible proof of the wrongful convictions now just beginning to be evidenced by DNA exoneration nationwide. In four years, there would be 3,000 web-sites. It can be expected that at some point in time Congress and state legislatures would take notice and pass laws providing a forum for these cases to be heard. It would be just too “right” for this not to happen eventually. Not when faced with thousands of prisoners holding out their proof of innocence, and asking only to be heard, and the growing public awareness that innocent people do get convicted, and do get their appeals denied.
I entitled this article, “With Liberty and Justice for All.” I must tell you why, although I must also admit to some shame in the reason.
I am a Vietnam veteran. I served with the 101st Airborne in Vietnam in 1970-1971. A few months ago I joined the Vietnam Veterans Group at my prison. At the first meeting I went to, during opening ceremonies, we stood to recite the Pledge of Allegiance. When we came to the final phrase of the Pledge, “with liberty and justice for all,” I almost choked on it. The ruling by the federal court, telling me that proof that I was innocent was irrelevant, danced before my eyes. The thousands of pages of research I had done on prisoners claiming they had proof of their innocence, who were rebuffed by the courts telling them a free-standing claim of actual innocence was “not a constitutional claim” – as stated by Chief Justice Rehnquist in Herrera v. Collins – flashed through my mind. At that moment, I seriously considered quitting the Vietnam Veterans of America, just so that I did not have to say those words. But I realized it wasn’t the promise of those words that was wrong, it was the people running the government who were wrong.
At that moment I made a commitment to myself, and to my country. I will not walk away from this. For me, for the 100,000+ other innocent prisoners sitting in a cell tonight just as I am, and simply because it is the right thing to do – I am going to force the government to recognize the problem of wrongful convictions, and force the government to open the doors of the courts of this nation to those prisoners who obtain evidence proving themselves innocent, and I don’t care if it is 20 years after their convictions.
No government has a legitimate interest in maintaining a false conviction. No government has a legitimate interest in the “finality” of the conviction and imprisonment of an innocent citizen. No government has a legitimate interest in hiding the truth from its people.
With Liberty And Justice For All
For fifteen years prosecutors and judges have tried to sabotage DNA claims of innocence by prisoners, fighting them at every turn. Just last week I saw the latest tactic used in Virginia. A prisoner was denied access to the evidence to get DNA testing run on it, and the federal court upheld that denial. On June 18, 2009 the U.S. Supreme Court ruled that a prisoner does not have the federal due process right to access evidence for post-conviction DNA testing that could conclusively prove his or her innocence. The Court’s ruling in District Attorney’s Office for the Third Judicial District et al. v. Osborne, 129 S.Ct. 2308 (2009) was by a 5 to 4 vote.
I know my last direct appeals have been denied. I know that causing the laws of this nation to change, to recognize claims and evidence proving innocence after conviction, will not be done overnight. I know it may not be done in my lifetime.
But I promise you this. If I die before the laws are changed, they’ll have to bury me with my ink pen in my hand because they won’t be able to pry it from my cold dead fingers.4 You have my word on that.
Until next time, this is Jim Love reporting From the Front Line.
The June, 2006 decision of the U.S. Supreme Court in House v. Bell reaffirmed this philosophy.
Unfortunately, due to a lack of financial support, the Innocent Inmates Association of Olmsted Falls, Ohio has had to cease reading, researching, and posting new cases. The web site is still active, but Mr. Kee had to obtain full-time employment outside of IIAO. That is a true shame, for as you will read later in this book, it was efforts by the IIAO and Mr. Kee, and Justice:Denied magazine, that resulted in my case being reversed, vacated and dismissed.
Prison Legal News is published in Seattle, Washington and reports on prisoner related issues from across the United States. It has published continuously since 1990.
To borrow a phrase from Charlton Heston.
Let’s Get To The Truth
From the Front Line
December 10, 2002
Let’s give them a chance to prove their innocence:
The Procedural Default Doctrine causes the dismissal of serious federal constitutional errors in State court trials without those errors ever being reviewed or ruled upon by any federal court.
THE LAWS OF ANY NATION must evolve with the expectations of society, of the people governed by those laws. Archaic practices propagated by the inertia of tradition must give way to new ideas when those practices infringe upon the degree of integrity the public expects from the courts when deciding criminal liability resulting in the loss of liberty. The “ends of justice” cannot be defeated by immersing the truth in a quagmire of procedural detail so dense and opaque as to hide simple right from wrong.1
The writ of habeas corpus, as it developed throughout the history of English common law, had the purpose of allowing a citizen to petition the King for release from gaol (jail) when a feudal baron had acted in an arbitrary manner in obtaining that imprisonment. Later on in history, the local courts of the counties of England were held to review by the Crown of the criminal convictions obtained by these local courts. The rule of law was established to ensure the common people were not treated unfairly by the local governing body.
After the Magna Carta was signed in 1215 A.D., the King’s men went to each village writing down the rules the villages in England had developed and found necessary for human beings to live together in a community. These rules were rules of common sense and fairness. Rules against murder, theft, rape, and other personal and property crimes, which we still have today, became the cornerstone of the foundation of the rules of any successful civilization and working society. In fact, “common law” derived its name from the “common sense” customs comprising English Common Law.
When the Founding Fathers wrote the Constitution of the United States the right of the people to be secure in their persons from arbitrary imprisonment was foremost in their minds. So much so that they prohibited suspension of the Great Writ in Article I, §9, cl. 2 of the Constitution. They provided for an appeal by the common citizen to the courts when that citizen was imprisoned by the government in a manner the citizen felt violated the rights secured by the Constitution of the United States to him, as a citizen of the United States.
On the surface, this protection of the common citizen from “the clamor of an excited people,” or local prejudice aroused in the face of a heinous crime, and an ultimate wrongful conviction, appeared sufficient to the Founding Fathers. (See, Ex parte Milligan, 71 U.S. 2, 118, 1866 WL 9434 (1866)). Their understanding of the writ of habeas corpus came from their experience with English common law. They recognized the principle of habeas corpus as important to any system of justice. They recognized that judges were often swayed by local political connections or public outrage over the commission of some crime. They recognized these judges and prosecutors remained in office only at the suffrage of the people in the community where they lived, people they interacted with each day, people who ran the stores where their wives shopped, and the schools where their children learned. It is inevitable that, in some cases, public opinion shades the actual evidence against the accused and ensures conviction, even when an outsider would be constrained by the rule of law to acquit the accused.
Unfortunately, the prohibition against the suspension of the writ of habeas corpus, as written in the Constitution, is flawed. England was not a federal republic. The counties in England are not separate sovereign
Let’s Get To The Truth
states entitled to the deference sovereign States are due under the principles of comity. The Founding Fathers failed to foresee this difference in the type of governments as creating a friction between the federal judiciary’s duty to enforce the constitutional rights of the citizens of the United States, and the rights of the states to enforce their laws. This friction between the federal government and the state governments resulted in the Supreme Court’s decision in the case of Ex parte Royall, 117 U.S. 241 (1886), which established the exhaustion doctrine requiring a state prisoner to present their claims of constitutional error to state court prior to seeking federal court relief.
From the doctrine requiring exhaustion developed the procedural default doctrine, which has resulted in the indirect suspension of the writ of habeas corpus for 79% of state prisoners seeking relief from unconstitutional state court convictions.
The principles underlying the exhaustion doctrine are sound. The state courts should have the first opportunity to correct convictions either claimed as unlawful under the constraints of state law, or claimed as unconstitutional under national law. The respect a sovereign state and its people are due demands no less, and to that extent, state prisoners should be required to present their issues to state courts prior to resorting to a federal petition for a writ of habeas corpus. On the other hand, the federal judiciary should be available to enforce the constitutional rights of the imprisoned citizen as a citizen of the United States, regardless of the fact the conviction took place under state laws. It is in this latter regard the judicial system of the United States has failed.
In my articles, “Civics: An Advanced Course Taught Only in Prison,” “Once You Are Accused,” and “Collateral Damage,” I detail how the procedural default doctrine causes the dismissal of serious federal constitutional errors in State court trials, without those errors ever being reviewed or ruled upon by any federal court. I also show that many of the procedural defaults occurring are actually created by state rules of court made so burdensome that the average prisoner cannot comply with them while being hindered by the rules of the prisons, lack of money, or general lack of education in court procedures. Fully aware that they can avoid federal review of state court convictions, and possibly avoid the cost of a new trial, states have created a procedural morass of rules so complicated and interrelated as to make a Rubik’s Cube seem as simple as a game of tic-tac-toe.2
The exhaustion doctrine adequately protects the interests of the states in the “finality” of their criminal convictions. It prevents state prisoners from proceeding directly to federal court without first allowing the local courts to correct their mistakes. Solely on the grounds of judicial economy, it is a justified policy.
The procedural default doctrine serves no such valid purpose. It should be abrogated. Constitutional errors should be heard on their merits and corrected by the federal judiciary if and when the State courts have failed to correct those errors. Claims not exhausted should be returned to the state court. If the State court rules do not allow the claim to be heard on the merits, then the state should change its rules to allow it to be heard. If the state refuses to do so, then the federal court should hold that lack of a forum, not against the State prisoner, but against the state, and rule on the merits of the constitutional claim.
Traditional legal scholars will begin to foam at the mouth at about this point of this article, but the simple truth is a citizen of the United States should not be deprived of the protections of the United States Constitution simply because that citizen’s conviction occurred in a state court and under state law. To allow the continued loss of rulings on serious constitutional violations occurring in state court trials, because those constitutional violations are “procedurally defaulted,” hampers the evolution of both state and federal laws of this nation, by depriving the states of uniform interpretation, and deprives citizens of the United States of the protections of the Constitution simply because they are citizens of the state in which the conviction was obtained and the fact the conviction was obtained by a state court instead of a federal court. Such an artificial distinction is a distinction
without a difference to the individual who is then forced to serve out a sentence on an unconstitutional conviction. It violates the evolving standards of what society expects from the courts. It undermines the judiciary as the third branch of government, and as a part of the “check and balance” function it was created to serve. It soils the principles of equity, corrupts the search for truth and defeats the ends of justice sought through the Rule of Law.
Justice Stevens’ dissent in Dretke v. Haley, 541 U.S. 386, 396-8 (2004), is also instructive on this issue:
“The unending search for symmetry in the law can cause judges to forget about justice. This should be a simple case. … That the State has decided to oppose the grant of habeas relief in this case, even as it concedes that [the defendant] has already served more time in prison than the law authorized, might cause some to question whether the State has forgotten its overriding “obligation to serve the cause of justice.” … But this Court is surely no less at fault. In its attempt to refine the boundaries of the judge-made doctrine of procedural default, the Court has lost sight of the basic reason why the “writ of habeas corpus indisputably holds an honored position in our jurisprudence.” … Habeas corpus is, and has for centuries been, a “bulwark against convictions that violate fundamental fairness.”” Ibid. at 396-398. (citations omitted)
I advocate the abolition of the procedural default doctrine as hampering the evolution of the laws of the nation and as depriving citizens of the United States of the protections secured to them by the Constitution of the United States. No one act would be a greater step into the future of humanity than to abrogate this relic of the past.
Since I am in for a penny, I might as well go in for a pound. Over and above the abolition of the procedural default doctrine, let’s get to the truth of criminal convictions.
In the United Kingdom, a Criminal Case Review Commission (CCRC) was formed that began operating on March 31, 1997. After a prisoner’s appeals are exhausted they can present evidence they are innocent of the crimes for which they have been convicted. The CCRC, after reviewing the entire case and the evidence presented by the prisoner, has the authority to refer the case to the Court of Appeals (COA) for consideration as a miscarriage of justice in light of the new evidence. More than 70% of the cases the CCRC has recommended to the COA have resulted in an overturned conviction. (As of October 31, 2009, 287 out of 407 cases referred by the CCRC to the COA have resulted in a quashed conviction. The CCRC’s website is, www.ccrc.gov.uk.
Recently in Congress there has been a movement to submit a constitutional amendment recognizing the rights of victims of crime. I call for that law to include recognizing the right of prisoners to submit evidence of their innocence, at any time, in any court. The prisoner could then obtain relief from their conviction and release from their imprisonment based on clear and convincing evidence proving a manifest miscarriage of justice has occurred.
I advocate that a claim of actual innocence be recognized as a cognizable claim for relief on petition for a federal writ of habeas corpus, and relief from imprisonment available upon the presentation of proof – subject to the exhaustion doctrine, but not subject to procedural default – that shows by clear and convincing evidence a manifest miscarriage of justice has occurred.
As stated in Chip Rowe’s article “False Justice” that appeared in the Playboy® Forum in July 2002, statistics support the estimation that over 100,000 innocent prisoners now languish in the prisons of this nation. This estimate is based on an extrapolation from the number of prisoners that have now been proven innocent by DNA evidence.
Let’s give them a chance to prove their innocence. Let’s get to the truth.
Let’s Get To The Truth
Until next time, this is Jim Love reporting From the Front Line.
In another context, Justice Kennedy asserted this same principle when he stated: “Our law must not become so caught up in procedural niceties that it fails to sort out simple instances of right from wrong and give some redress for the latter.” ABF Freight System v. NLRB, 510 U.S. 317, 325 (1994) (Kennedy, J. concurring).
The procedural default doctrine has become a procedural minefield for pro se litigants. In 1977, Justice Brennan, dissenting in Wainright v. Sykes, 97 S.Ct. 2497, with uncannily accurate foresight predicted the evolution of the procedural default doctrine when he wrote:
“If the standard adopted today is later construed to require that the simple mistakes of attorneys are to be treated as binding forfeitures, it would serve to subordinate the fundamental rights contained in our constitutional charter to inadvertent defaults of rules promulgated by state agencies and would essentially leave it to the states, through the enactment of procedure and the certification of competence of local attorneys, to determine whether a habeas applicant will be permitted the access to the federal forum that is guaranteed him by congress.” Id. at 2517.
Taking Advantage of Human Nature,
Or Meet Judge Slick Willy
From the Front Line
January 18, 2003
The bad judges know that human nature will see to it that few of you ever check out what is written here and find out it is all true. The few who actually do delve into the facts, and become alarmed, can always be written off as crackpots, and labeled liberals to be discounted or ignored.
ALLOW ME TO TELL YOU a story about a man I met while I have been in prison, a man named Danny Jenkins. Understand that many of the people I write about are not strangers to me, but people I have tried to help with their cases and convictions. I have read the transcripts of their trials. I have received letters from their mothers and fathers, in some cases. I have seen pictures of their children. I have sat in the law library and talked to these men day after day, week after week, year after year. I have typed their court papers. I’ve walked the track on the prison yard with them. With some of them I have had Christmas dinner. I’ve played partners double-deck pinochle with them. Sat across from them at a chessboard. Stood beside them in a phone room and heard them talk to their family. I’ve sat with them after they received the news their mother, or father, had passed away. I’ve paid their postage to the court when they didn’t have enough money to pay for it themselves, and their time deadline was expiring. I’ve paid for the photocopies required by the rules of court when they did not have enough money to get the number of copies they were required to mail to the court. I’ve found attorneys to take their cases when they couldn’t explain their case well enough for an attorney to understand that they actually had a real complaint that needed to be heard. I’ve lived in the same building, within 100 feet, of some of them, for years at a time. I’ve seen what the judges who heard their cases have done. Now I want to tell you about one man, and what is being done to him.
I don’t know if it will make any difference for me to tell you what is really happening, and how you are being fooled. But I think it is important for someone to preserve the truth for history. I think it’s important that it be said, simply because the judges who are doing what I will describe below do not want it said, even though they know there is little chance that anyone who matters will check it out and see if it is true. That’s the terrifying beauty of what’s going on in the courts. The bad judges know that human nature will see to it that few of you ever check out what I say here, and find out that it is all true. The few who actually do delve into the facts of the cases below, and become alarmed, can always be written off as crackpots, and labeled liberals to be discounted or ignored.
The terrifying beauty of it is that these same judges depend on that same human nature to get away with what they are doing, and what they are doing is lying to you by omission. They figure 99% of the time, except for the people like me, or the families of the prisoners, other people will be too busy with their everyday lives to read more of the records, evidence, transcripts, or documents of the case. They figure you will only read the opinion they issue in the case, and then thank God such a terrible person is in prison. How they are doing what they do is slick. They turn your stomach with the actual facts of a horrible crime, and never mention the facts in the record that show the wrong person may have been convicted of the crime.
They know most people will not access, obtain, or take the time to read the thousands of pages of documents most criminal convictions generate. If you do attempt to obtain those documents, they have an ace in the hole.
Taking Advantage Of Human Nature
The clerks of the courts will first slow-walk you, while they call the prosecutor, tell them “someone” is trying to get the records of a case, and ask what they want done. If the case is a legitimate conviction, without anything embarrassing to the powers that be, you will be given the records with little hassle. But if the case is one, such as the case I am going to describe below, it will get much more difficult for you to obtain the records. Difficult and expensive. Costs of a transcript, numbering two or three thousand pages, will be set at two or three dollars a page for you to obtain. That just happened to the daughter of a friend of mine who went to the Clerk of the Court in Cadiz, Ohio (Harrison County, Ohio.) Not only was she placed in a “special” room to be interviewed while the phone lines were burned up between the prosecutor’s and sheriff’s offices, but the sheriff actually followed her out of Cadiz, Ohio until she crossed the county line, right on her bumper, all the way. Intimidation. When she left the clerk’s office, the Clerk of the Court looked at her and said, “You’re not going to cause us any problems, are you?”
All she had asked for was her daddy’s trial records.
Her daddy’s name is Danny Jenkins. He was my cellmate here for a year and a half. He was accused, charged, tried and convicted of the murder of his best friend of 25 years, and of his best friend’s brother, whom Danny had known for over 20 years. Both men were shot and killed on October 31, 1997 while hunting deer in Cadiz, Ohio.
At the sheriff’s request, on November 5, 1997 Danny drove down from Akron, Ohio, where he lives, to the sheriff’s office in Cadiz, Ohio. Danny told the agents of the Ohio Bureau of Criminal Identification (BCI) that while he had hunted with both of the brothers earlier in the week in the area, he had stayed home that Friday. He named a list of stores he had visited that afternoon in Akron. The coroner testified the two men had been killed “between 3 p.m. and 7 p.m.,” on October 31st.
Understand that Akron is 75 miles from Cadiz, and on the afternoon of October 31, 1997, there was heavy construction work being done on the interstate in Canton, between Akron and Cadiz, which slowed the driving time to between two and two-and-a-half hours.
Danny was at Lucasville at the same time I was, but in a different cellblock. He wrote to me for help when his direct appeal was denied, but at that time I had around twelve other cases for men in the courts and I had to tell him I could not take any more cases. I did write him a detailed letter guiding him in what had to be done to meet the requirements of the federal habeas corpus exhaustion doctrine. He found another jailhouse lawyer who did a fairly adequate job of following my instructions. Four months after I was transferred to Lebanon Correctional, Danny was transferred here also and was moved into my cell. By then his Petition for a Writ of Habeas Corpus had already been filed, and the State attorney general was working diligently to have it dismissed on fictional “defaults” to prevent the merits of his claims from being heard. I took over the litigation of his case and won a favorable ruling on the default issue, allowing a ruling on the merits of his assigned Grounds for Relief.
I must, at this point, place a disclaimer in this story. I am not going to discuss all the issues raised for Danny. To do so would require at least the same fifty pages of writing needed by Magistrate Judge Terence P. Kemp of the U.S. District Court at Columbus to issue his Report and Recommendation in Danny’s case, plus the forty pages of Objections I filed to that Report and Recommendation. However, there is one aspect of the case that is on point with the lead in of this article that I will discuss. It is as follows:
As stated before, Danny, during the interrogation of November 5, gave a list of stores he visited in Akron the afternoon of October 31st to Ohio Bureau of Criminal Investigation (BCI) agents Snyder and Mrockowski. At trial they testified they went to Akron to the stores to see if Danny had been there. Danny had said he had been to a liquor store, a fruit basket store, a gas station, a dry cleaner’s and that he might have stopped off at a
cigarette store. He said he took a nap at home, and called his landlord and told her he would pay his rent on Monday at 7:30 p.m., and he made that call from home.
None of this information was investigated by Danny’s court-appointed trial counsel. I’ve had dealings with her in the past. She is one of those attorneys who believes her diploma from law school gives her a monopoly on knowledge, and who vehemently advises her clients to stay away from all jailhouse lawyers, then refuses to communicate meaningfully with her clients. She is also one of those attorneys who insists on being assigned to the appeal of the trial where she was trial counsel – knowing she cannot raise her own ineffective assistance as trial counsel as an error on appeal. She covers her tracks, then croons to new clients that she has never been found ineffective. By the time her clients find that she has sold them out, they are procedurally defaulted on all claims of her ineffective assistance. I tried to get one man’s records from her: she failed to answer my first three letters, then refused delivery of a Certified Mail letter to prevent me from proving she has been contacted. At the time of Danny’s trial, she had been assigned to, and had lost, several other aggravated murder cases while screwing them up on appeal so badly they could not be salvaged. She is from Steubenville, Ohio. Worse yet, we just found out she is Danny’s trial court judge’s attorney of record. She just defended him in misconduct charges that resulted in Judge Steven Karto of Harrison County, Ohio, being removed from the bench and suspended from the practice of law for six months. The National Law Journal annually publishes an article about the worst judges in the United States. Judge Karto was included as one of those judges in the article published on April 23, 2002 titled, “Injudicious Conduct.” Although Karto engaged in bizarre behavior in many cases, in the case that resulted in his suspension “he initiated and presided over a contempt hearing, came off the bench to play prosecutor, then whipped off his robes to testify as a witness.” Returning to the bench he found the defendant guilty of contempt.
Danny faced murder charges in a trial run by these idiots.
At trial an Agent Kopfer of BCI testified he reviewed the stores’ surveillance video tapes (the reference was always in the plural), and he did not see Danny appearing on the tapes. When asked if he had ever met or seen Danny Jenkins prior to viewing the video tapes, Agent Kopfer testified “no,” he had never seen him in person. When asked how he could testify Danny did not appear on the video tapes if he had never met him, Agent Kopfer stated he had looked at a driver’s license photo, and the mug shot of Danny from when he had been arrested. Agent Kopfer also only testified to the video surveillance tape from the cigarette store, where Danny told police he might have gone that afternoon. None of the other video tapes were mentioned, even though the testimony always referred to “tapes” in the plural.
When Danny’s trial counsel tried to move on with other questions, and skip any more questions about these video tapes, Danny made a scene in the courtroom, calling her over and insisting she ask to see the tapes. She then moved, for the first time, to be allowed to review the videotapes of the stores in Akron. Judge Karto denied her motion and told her she was not permitted to view the tapes. To this day, no one except Agent Kopfer has ever viewed the videotapes from the surveillance cameras taken at the various stores in Akron on the afternoon of October 31st – the time of the murders.
Understand something else also. Danny is 56 years old. He has been a barber for 30 years, and a hunter all his life. When he was arrested on November 5th, on his “property” list is a ball cap. Danny always wears a ball cap everywhere he goes. He wears one on the prison yard. Neither the photo that Agent Kopfer had, the driver’s license, or the mug shot showed Danny wearing a ball cap. Couple that with the general poor quality of videos from store surveillance cameras, such as you see on TV all the time, and I ask you, what real opportunity had Agent Kopfer to identify Danny on any of the videos taken by the cameras at the various stores?
At Danny’s insistence, trial counsel, when acting as his appeal counsel, raised the error that the prosecution withheld evidence which would prove Danny is innocent by failing to give his defense attorney the video tapes
Taking Advantage Of Human Nature
from the various stores in Akron. This is called a Brady violation after the U.S. Supreme Court’s 1963 decision in Brady v. Maryland. The decision requires prosecutors to disclose any exculpatory evidence (showing the defendant might be innocent), to defense counsel during discovery, and prior to the trial. Understand, a prosecutor represents the people, including the defendant, from the aspect that a prosecutor has a solemn duty to seek justice, not just the conviction of a particular defendant. There is something else you need to know about this case. It was the first murder trial ever held in this extremely rural one-horse county, and the first murder trial ever prosecuted by this prosecutor – who happens to be the son of the county’s largest employer and biggest taxpayer. (Getting the picture yet?)
The court of appeals held that, because Danny’s attorney did not enter a specific request for access to the videotapes prior to the trial, Danny had waived the error. Bear in mind, this was ineffective assistance of trial counsel, but because trial counsel was also appointed as the appeal counsel, she did not raise the error of her own ineffective assistance under the holdings of Kimmelman v. Morrison, 477 U.S. 365 (1986) (failure of trial counsel to perform an adequate pre-trial investigation constitutes ineffective assistance of counsel). In fact, an attorney is deemed incompetent to identify and raise her own ineffective assistance. If she didn’t know it was error in the first place, how could she identify it as error and raise it as error on appeal? That is why to appoint trial counsel as the counsel on appeal is a practice universally condemned – most especially in a murder case.
So I’m in federal court now with this mess, which is like trying to unscramble eggs. How do I do it? The only answer is to get the federal judge to grant Danny discovery under Habeas Rule 6, subpoena the video tapes, and ask the court to hold an evidentiary hearing where everyone can look at the video tapes and see if Danny appears on them. How do I do that? I must show there is some evidence on the record of the trial that raises a reasonable probability that Danny was in Akron during the time of the murders in order for an order granting Danny discovery of the video tapes to be warranted by law.
And guess what – it’s there.
The prosecutor called a witness, Cheryl Honeycut, who works at the dry cleaner’s in Akron. She testified Danny Jenkins dropped off his laundry at the dry cleaner’s in Akron, “between 3 p.m. and 6 p.m.” on October 31. The testimony is confusing because the prosecutor mixed up his questions, jumping from the time the laundry was “dropped off” to the time the laundry was scheduled to be picked up (at 8:30 p.m.), but, that is what her testimony was. She based this on a laundry ticket found in Danny’s car by the sheriff when they seized and searched Danny’s car on November 5.
At this point, for anyone who bothers to start checking into Danny’s case, I must warn you not to be misled by the testimony given as to the binoculars of the victims in this case. While that testimony seems conclusive proof of guilt, it is not – it just seems that way. I can back that up with witnesses, not called at the trial, who will show the testimony about the binoculars was mistaken as to the pair belonging to Danny’s best friend, and planted by the sheriff as to the best friend’s brother. I have a witness who has stepped forward as to the first, and can point directly to witnesses for the second, but will not do so here for fear of compromising Danny’s case at this point, except under attorney/client privilege protections.
In the Objections I filed to the Magistrate’s Report and Recommendation, I quoted the testimony of Cheryl Honeycut in its entirety appearing at pages 450-453 of the trial transcripts, as “some evidence” on the record proving Danny was in Akron at the time testified to as the time of death by Dr. Platt. I claimed this evidence was sufficient for discovery of the videotapes to be granted by the federal court under the requirements of Habeas Rule 6. I stated that proof Danny was at the dry cleaner’s that day, during the afternoon, leads to the reasonable probability he was also at the other stores in Akron that same afternoon – establishing an ironclad alibi for Danny because of the construction on the interstate in Canton, Ohio extending the driving time between Akron and Cadiz to over two hours. It also shows the witnesses from Cadiz who testified they saw Danny in Cadiz on
that afternoon had confused the day they saw him with one of the days earlier in the week when he was in Cadiz, hunting, with the two victims.
In other words, the videotapes that no one with Danny’s interests at heart has ever seen, have a reasonable probability of containing Danny’s image on them and of being exculpatory evidence which was withheld from the defense at trial, in violation of Brady.
The district court judge, Judge Smith, denied the Objections with a slick-willy move. He too quoted Cheryl Honeycut’s testimony, but in the middle of his quotation of the testimony at page 450 of the trial record, there appear three *** signs designating he had “left out” part of the testimony. Those three asterisks take the place of six lines of testimony given by Cheryl Honeycut – the very six lines showing that Danny dropped off his laundry between 3 p.m. and 6 p.m. on October 31st. The way Judge Smith edited the testimony, it appears to say Danny dropped off his laundry at 8:30 p.m. instead of what the testimony actually says. Remember, the prosecutor jumped from one subject (when it was dropped off), to another subject (when it was to be picked up), during his questioning of Cheryl Honeycut. Trial counsel did nothing to clarify this testimony, except, at page 452-53, to bring out that the laundry had been dropped off between 3 p.m. and 6 p.m. She did not point out to the jury how the prosecution’s questioning was misleading. She further failed to raise this critical testimony on appeal as a central point and issue, indicating a Brady violation had occurred.
Based on his total misrepresentation of the content of the testimony of Cheryl Honeycut, Judge Smith held the testimony was not exculpatory evidence and did not require further development of the facts by way of an examination of the videotapes, and dismissed Danny’s petition for a writ of habeas corpus.1
A report in USA Today last week (I think it was), said the average number of cases a federal circuit court of appeals judge disposes of in a year is 692. That’s two cases a day. Judge Smith is counting on the court of appeals simply to assume he has done his job correctly, and quoted the transcripts truthfully, and not spend the time involved in reading the transcripts. He knows that at two cases a day, the courts of appeals simply do not have the time to sit down and read every case before them. After all, that’s what happened in my case.
I spent one and a half years living in a nine-foot by six-foot cell with Danny. Like most barbers, he can tell stories 24 hours a day. But many of the stories he told me were about his best friend and himself, and the things they had done over the 25-year friendship they had. A man learns to read people in here, for his own safety. One thing I never failed to hear in Danny’s voice, never failed to see in his body language – he loved his best friend. I am convinced he would have cut his own arm off before he ever hurt him in any way, much less killed him.
Danny’s daughter went to the liquor store last week and tried to talk to the clerk, who knew Danny well, who worked at the liquor store on the afternoon of October 31, and who was never called at the trial, or interviewed by Danny’s trial counsel. He refused to talk to her. Apparently, after we started raising hell in federal court, he received calls from the sheriff and prosecutor in Harrison County advising him not to talk to anyone about what he knows. Specifically that Danny was in the liquor store that afternoon, and that the BCI Agents did seize the surveillance camera tapes.
Tapes to which Danny has been refused access. Judge Smith held that because Danny could not prove the videotapes from the surveillance cameras from the stores in Akron contain pictures of him in the stores that afternoon, his Brady claim was without merit. He did this in the same breath as he used to refuse Danny’s request to see the videotapes, and to show the court he does appear on them. Danny was asked to make bricks without straw.
He is required to prove he appears on the videotapes, but cannot see or use the videotapes to prove that. And, he must have his claims heard by a judge who is willing to misquote testimony to prevent him from proving that.
Taking Advantage Of Human Nature
Will the judge and the courts get away with this? I see them getting away with it all the time. They count on human nature preventing them from being caught at it in a public manner. Lots of people will read the judge’s decision misquoting Cheryl Honeycut’s testimony, but how many people will read the Objections I filed for Danny quoting her full testimony, and then check what I said against the transcripts? I challenge you. Prove I’m wrong.
Until next time, this is Jim Love reporting From the Front Line.
1 After this article was published the decisions in Danny’s habeas petition rendered in the U.S. District Court and the Sixth Circuit were removed from Westlaw. Danny just arrived here last week and is housed in my cell block at Allen Correctional Institution in Lima, Ohio.
National Innocent Prisoners Project (NIPP)
From the Front Line
January 31, 2003
Nipping at the Heels of Justice: “Justice is not only about convicting the guilty.”
THE TIME HAS COME to address the problem of wrongfully convicted innocent citizens as a national problem, as opposed to a local problem. There are numerous local Innocent Projects located in each State in this nation, either of an independent nature, or at local law schools. Yet there is no national focal point where these numerous organizations can report the numbers of inquiries received, cases pending, cases prevailed upon or backlog of cases pending and awaiting assistance.
Cases where state authorities quietly grant a parole or pardon to prisoners presenting proof of innocence seldom receive more than one paragraph on page ten of some local newspaper, if that. Cases where new trials are granted, and the results of those trials, are seldom reported as an actual case of an exoneration of a wrongfully convicted citizen.
We are making a serious mistake in focusing only on those prisoners who are released from death row due to proof of innocence. Death row prisoners receive the most comprehensive protection of their rights of all prisoners. The number of death row prisoners proven innocent and released are merely a warning sign of the numbers of non-death row innocent prisoners in this nation. The innocent death row prisoners are just the tip of the iceberg.
I advocate the formation of a National Innocent Prisoners Project (NIPP) to serve as a clearinghouse and reporting center for all the individual innocence projects and law schools in the United States. The mission of the NIPP would be to gather statistics and information from innocence projects and trial attorneys nationwide to identify and report upon the actual scope of the problem of wrongful convictions in the United States, and to provide those statistics to Congress, state legislatures, the news media and the public.
At the present time the problem of wrongful convictions is addressed by a highly segmented group of loosely affiliated lawyers and concerned citizens at the local and state level who generally learn about each other’s successes in newspapers, or when they are occasionally reported on programs such as 48 Hours, 20/20, Primetime or 60 Minutes. Yet no actual statistics have ever been gathered nationwide and placed into a comprehensive presentation. Without those statistics, the actual scope of the problem needing to be addressed by the justice system and the national government remains hidden. Needless to say, local prosecutors and judges do not go out of their way to call a press conference to announce that they made a mistake and sent an innocent citizen to prison.
Illinois Governor George Ryan’s January 2003 commutation of the sentences of all death row prisoners in the State of Illinois, as controversial as it may be, should raise a red flag for every citizen, not just persons who are the pro-death penalty segment of society. The prisoners whose sentences he commuted had two trial attorneys, and attorneys and investigators, appointed at every stage of their appellate process – plus, death penalty cases receive a heightened scrutiny in the courts at all levels of review. This includes collateral review of their cases, or post-appeal and post-conviction actions in both state and federal courts.
National Innocent Prisoners Project
Non-death penalty cases receive one attorney at trial and one attorney on their first appeal as of right. After that the prisoner is left to his or her own resources, assisted by jailhouse lawyers, if they can find one who does not already have too many cases pending for other prisoners.
While the focus is on death penalty cases, it should be remembered that many of the prisoners in this nation are serving either life sentences, or sentences which are so long they also will die in prison, just not as quickly as those sentenced to death.
I am sentenced to four consecutive life sentences. The first time I even have the possibility of being released is in May of the year 2036. I have overwhelming proof of my innocence. Yet no laws exist in either Ohio or the United States which provide for a place or person to which I can present my evidence, and have it heard and ruled upon as a matter of right. Ohio Clemency and Pardon statutes specifically state that a claim a prisoner is innocent is not a claim that can be heard by Ohio’s Governor upon application for pardon, clemency or commutation of sentence. Ohio Rule of Criminal Procedure 33 limits Motions for New Trial to being filed within 120 days of the conviction. The evidence proving I am innocent could not be found for three years after my conviction. When I tried to file my evidence in a federal court, the court refused to accept it, stating that Chief Justice Rehnquist had ruled that proof of innocence by a prisoner convicted in a state court was a matter for the state to correct, and proof of innocence submitted by a state prisoner was irrelevant in a federal habeas corpus proceeding..
I have nowhere to go, as a matter of right, to present my proof that I am innocent. That’s wrong.
In May of 2036 I will turn 85 years old. I see men in here now using their walkers to walk painfully to the chow hall each day. I don’t want to live, and die, like that. If I cannot change the laws of this nation to recognize a fundamental right to liberty, or a constitutional right to liberty, and to establish laws allowing prisoners with proof of their innocence the right to present that evidence to some court of law, commission or panel, and obtain relief from wrongful convictions, I will likely die alone some night in this prison cell with proof I am innocent sitting in my locker box under my bed.
The only way I know to change the laws to recognize the right of a prisoner to prove innocence after conviction and the completion of appeals is to make the public aware of the extent of the problem. The only way I know to do that is to attempt to show the need for a National Innocent Prisoners Project where the information on the numbers of innocent prisoners can be collected, correlated, compiled and rendered into hard empirical data.
Five percent of the death row prisoners in Illinois were released after DNA evidence proved them to be innocent. All of those prisoners had had a trial and all of their appeals in both federal and State courts had been held and denied. This is what bothered Governor Ryan. The system had failed to correct wrongful convictions despite the full protections and heightened scrutiny given to these cases in appeal after appeal.
The system of justice in this nation cannot be 100% efficient. The numbers of prisoners released from death row based on DNA evidence indicates that at least 5% of all prisoners may well be innocent citizens who have been wrongfully convicted. I say “at least,” because non-death penalty prisoners do not receive the same intense review of their cases as death penalty prisoners receive, so the error rate may well be much higher.
In order to know if the problem of wrongful convictions is as prevalent or greater among non-death penalty prisoners as it is among death penalty prisoners, a National Innocent Prisoners Project must be formed where all the one, two, three, four or five attorney local innocence projects can report their cases, backlogs and exonerations won, for entry into a national database. If the problem indicated by death row exonerations proves to be a national problem extending to all convictions, then it should be addressed as a national problem and the
entire justice system reformed to provide for the possibility of wrongful convictions, and a method of review of proof of innocence presented by prisoners created as a matter of right.
If the percentage error rate in death row cases is any indication of the extent of the problem, at least 5% of the more than 2,000,000 prisoners incarcerated in jails and prisons are innocent.
That means, right now, right at this very moment as you read the end of this article, at least 100,000 of your fellow country men and women are imprisoned by some local, state, or federal agency wrongfully, without recourse at law. If the government can do that to any one single innocent person, it can do it to you and your children.
A National Innocent Prisoners Project would bring the problem to the front page of the newspaper, instead of the one paragraph at page ten it now receives. It would force the government to enact laws to protect the wrongfully convicted.
Ask yourself a question. Governor Ryan was a pharmacist before he became governor of Illinois. If he had been a former prosecutor who had prosecuted many of the cases he reviewed, and placed many of the prisoners on death row in Illinois, would he, could he, have made the same decision he did?
Many of your governors, state representatives and senators, U.S. representatives and senators, and state attorney generals are former state or federal prosecutors who scoffed when a defendant claimed to be innocent. Can they politically afford to enact laws that will enable large numbers of prisoners to prove that they are in fact innocent?
This is a problem the people must take into their own hands, because our elected representatives have a vested interest in sweeping the problem under the carpet and meeting it with silence instead of open debate. After all, what politician could publicity state that an innocent prisoner should not be allowed to prove their innocence and regain their freedom? Yet this is exactly what they are saying by refusing to address the problem as more than a theoretical discussion.
The only way most elected government officials can address the problem of wrongful convictions safely and still maintain the status quo is by not addressing the problem at all. This is what they are doing, this is what they have been doing, and this is what they will continue to do, until we the people box them in a corner and make them answer the most important question of our time in relation to our system of justice: “Why are so many wrongful convictions not being corrected during the appeal process provided for criminal convictions?”
And maybe more importantly, “How many more wrongful convictions are there that we do not yet know about?”
Let’s find out. Let’s create a National Innocent Prisoner Project and gather the statistics from all the independent innocence projects and other sources nationwide.
Let’s see what the statistics show. Let’s see how many prisoners are granted a parole to silence them, or granted a new trial that is never held because the charges are dismissed in light of the new evidence. Let’s see how many DNA exonerations never made national headlines. Let’s see how serious a problem we face. Let’s see how many prisoners have proof they are innocent, and no place to present that evidence for it to be heard, or how many are sitting on the waiting lists of the Innocence Projects across the nation, waiting just for someone to review their evidence. And if the numbers are as death row exonerations in Illinois indicate they are, let’s hand the statistics to Congress and the State legislatures and ask them to create laws for the innocent in prison.
In these days of victims’ rights, they are the greatest victims of them all.
Until next time, this is Jim Love reporting From the Front Line.
A Proposed Resolution Of The Vietnam Veterans Of America
From the Front Line
March 11, 2003
Vietnam Veterans of America to Consider Resolution on Wrongful Convictions
IN A BREAKING STORY, I have learned that Chapter 10 of the Vietnam Veterans of America, one of the largest local chapters in this nation, which is located in Cincinnati, Ohio, will at their next meeting be presented with a RESOLUTION that advocates the creation of “Fail-Safe” Laws, statutes and rules of court by Congress, state legislatures and state supreme courts, allowing wrongfully convicted veterans and citizens access to mandatory court or independent commissions, empowered to review claims and proof of innocence and to grant relief.1
In the summer of 2002, a representative of Chapter 10, and minister of the Vietnam Veterans for Christ Ministries, Mr. Boggess of Cincinnati, attended a meeting of Chapter 592 of the Vietnam Veterans of America at Lebanon Correctional Institution in Lebanon, Ohio, as a guest speaker to the incarcerated veteran members of Chapter 592. During the meeting I had the opportunity to discuss not only my personal case and the proof I have obtained showing my innocence, but the problem of wrongful convictions nationwide. Our time was limited due to other members wanting to discuss different veterans’ issues with Boggess; however, he invited me to write to him.
At that time, the Innocent Inmates Association of Ohio, Inc., had my case under review and had not accepted my case for posting on their website at www.innocentinmates.org. I did not have all the documents necessary to prove my innocence available to photocopy and send to him at that time. Further, when I wrote to Boggess the next day, I never received an answer. My plate was full with assisting other men in their legal work, so I simply kept his address for a later time.
Last week I ran across Boggess’s address and wrote him a six-page letter. I explained in detail my situation, and how the statistics generated by the 5% of death row prisoners exonerated by DNA evidence on Illinois’ death row, prior to Governor Ryan’s commutation of all 167 death sentences, indicate that a larger problem of wrongful convictions exists among non-death penalty convictions nationwide.
I explained that 12.5% of all state prisoners, 14.7% of all federal prisoners, and 11.7% of all jail prisoners in the United States are veterans, and that the 5% wrongful conviction statistics applied to them as well. I explained this indicated that as many as 10,000 incarcerated veterans may be innocent, and, like me, without a court forum or remedy where they can present their proof of innocence and obtain relief. I referred Boggess to my websites, both at PrisonerLife.com and at innocentinmates.org.
Two days ago I called Mr. Rod Kee, founder of the Innocent Inmates Association of Ohio, and he told me I had a lengthy email from Boggess on my website; he read part of it to me over the phone.
Boggess and I had discussed the fact that the National Vietnam Veterans of America has already adopted a RESOLUTION opposing the death penalty. I suggested they consider a RESOLUTION concerning wrongful convictions and the lack of laws to address them in the United States. In his email, Boggess stated that in light of what I had presented at innocentinmates.org showing my innocence, and the statistics I had provided, that he had decided to present the following RESOLUTION to Chapter 10, and at the National Vietnam Veterans of America Convention to be held shortly.
The RESOLUTION I sent him to present is:
A RESOLUTION OF THE VIETNAM VETERANS OF AMERICA
The Vietnam Veterans of America recognizes all of the following as true:
That twelve and one-half percent (12.5%) of the prisoners being held in the prisons and jails of the several States and of the United States are Veterans;
That several of our incarcerated brothers-in-arms maintain they are innocent of the crimes for which, in some cases, they are sentenced to life in prison;
That several of our brothers-in-arms assert they have evidence of either a non-DNA nature, or of a DNA nature, obtained by them after their trials and after the complete exhaustion of all available state and federal appeals and court remedies, or after the expiration of the time limits imposed by law in which they were allowed to present this newly discovered evidence of their innocence;
That the recent surge of the exoneration and release of wrongfully convicted citizens due to advances in DNA technology has been accomplished more through media exposure and publicity of the individual cases that pressured local courts to grant otherwise totally discretionary hearings in these cases than through the existence of laws, court rules or independent commissions or panels established by law to review claims by prisoners of newly discovered evidence proving their innocence as a matter of right;
That the United States Supreme Court does not recognize a freestanding claim of actual innocence advanced by a prisoner in a federal petition for a writ of habeas corpus as a constitutional claim or violation of the Due Process Clause of the United States Constitution, even when that claim is supported by overwhelming proof evidencing the prisoner is actually innocent of the crimes for which they are imprisoned;
That the several states have failed to enact or adopt laws creating any forum for the review, as of right, of newly discovered evidence proving the innocence of prisoners, obtained by the prisoner after the expiration of the time limits imposed in which the prisoner was allowed to file a Motion For New Trial, a time limit as short as ten (10) days in some states;
That in the State of Illinois, five percent (5%) of death row prisoners were proven innocent by DNA evidence, some within hours of being executed, prior to Governor Ryan issuing a blanket commutation of the sentences of all 167 death row prisoners;
That the governor of the State of Illinois stated as his reasons for granting a blanket commutation to all death row prisoners in that state, his belief after a review of all 167 convictions that a systemwide breakdown in the determination of guilt or innocence, and the appeal process, had occurred;
That in December 2002, in Report NCJ-197020, the United States Department of Justice, Bureau of Justice Statistics, reported that between the years 1973 and 2001, ten percent (10%) of all death penalty convictions were reversed on appeal, sixteen percent (16%) of all death sentences were reversed, two percent (2%) of all death sentences were commuted to life sentences by governors finding irregularities, and point four percent (0.4%) of death row prisoners were removed from death row for unknown or undisclosed reasons, resulting in a total of 2060 of 7096 death sentences, or twenty-nine percent (29%) being found to be so unreliable as to be set aside;
That death penalty cases receive the highest level of scrutiny by the courts, and the highest level of due process protections of all criminal convictions;
That as of December 31st, 2001, there were 1,962,220 U.S. citizens being held in the prisons and jails of the several states and of the United States, and another 4,663,898 U.S. citizens under the supervisory control of either the several states or the United States on probation or parole, for a total of 6,594,000 citizens, when adjusted for prisoners with multiple statuses;
That even using the lowest error rate of the five percent (5%) exonerated by new DNA evidence on the State of Illinois’ death row prior to the governor of Illinois commuting all death row sentences, and applying that
A Proposed Resolution Of The Vietnam Veterans Of America
percentage to all non-death penalty convictions, while recognizing that non-death penalty convictions receive a lower standard of scrutiny and review for error on appeal, at a minimum, there are approximately 100,000 undiscovered and as yet non-exonerated innocent United States citizens being presently held in the jails and prisons of the several states and of the United States;
That of the approximately two hundred thousand (200,000) of our brothers-in-arms presently incarcerated in the prisons and jails of the several States and of the United States, statistically at least 10,000 of them are innocent of the crimes for which they are imprisoned;
That our innocent brothers-in-arms, and other innocent prisoners of the several states and of the United States, have no laws, courts rules, independent commissions or panels, which constitute a forum in which they may present any new evidence they may have proving their innocence and obtain either a review of that evidence, or relief from their wrongful convictions, as a matter of right;
That Article 14, paragraph 6, of the International Covenant on Civil And Political Rights, enacted on December 16, 1966 by the United Nations, establishes under International Law the right for persons convicted of criminal offences by Member States to be entitled as of right to a forum in which to present new or newly discovered evidence proving a manifest miscarriage of justice has occurred by their conviction, and for that person to be able to obtain relief from a wrongful conviction and compensation, therefore,
16) WHEREFORE BE IT RESOLVED: That the Vietnam Veterans of America do hereby support and strongly advocate the creation and enactment, by the Congress of the United States, the legislatures of the several states, and the supreme courts of the several states, of new laws, statutes and rules of court, which provide, as a matter of right, a means by which citizens who have been convicted of criminal offences shall have mandatory access to a court forum or independent commission in which they may present new or newly discovered evidence proving by clear and convincing proof that a manifest miscarriage of justice has occurred by their conviction, and from which those citizens may obtain relief from wrongful imprisonment and compensation of a substantial nature therefore.
Boggess further explained that he had lost the address to PrisonerLife.com I had given him at our meeting, and never received the letter I sent to him last summer. (Prison mail has an above average rate of “loss,” for some unexplained reason.)
The deadline for submitting Resolutions to the National Convention of the VVA is March 31st, 2003. So we are operating on a tight time schedule that may or may not be met.
After years of quoting statistics to various organizations and attempting to gain support of a nationally recognized organization, I may well be on the brink of a major breakthrough with an organization that maintains a powerful lobby in Congress and which has the respect of the American people.
I have proposed that any new laws addressing the problem of wrongful convictions in the United States be called “Fail-Safe Acts.” They take effect when all the normal procedures of our court system have failed to correct a wrongful conviction. Like the high standard of documentary proof required by the Innocent Inmates Association of Ohio, these new laws will protect the truly innocent. Further, unlike some proposals that have been made to Congress, these laws will not be limited to solely DNA evidence.
To allow non-DNA evidence to be used to prove a wrongful conviction is most important, because among the wrongful convictions are a percentage of convictions obtained by false allegations and false testimony, where in fact no crime ever occurred. If no crime occurred, there can never be any DNA evidence proving guilt or innocence.
The laws of all States allow convictions upon allegations of rape based solely on the testimony of the alleged victim, without any physical proof or corroborating witnesses, to be upheld. Although few men accused
of rape in these types of cases can prove, for example, as I have proven, that I was living over 2,000 miles from Cincinnati on the dates when the rapes for which I am serving four life sentences were testified to as having occurred, those prisoners with such proof should have a court forum or remedy available to them in which they can present that proof.
To say the above developments have made my week is an understatement. To say the above developments may turn a few judges’ and prosecutors’ hair grey, is also an understatement. Pandora’s Box is opening, and in this instance, it is going to be a good thing once the dust settles.
If this Resolution passes, and the laws needed are passed, no longer will a judge be able to tell a prisoner, as I was told, that my proof of my innocence is irrelevant. No longer will motions filed by prisoners for new trials based on new or newly discovered evidence proving the prisoner is innocent, be dismissed in one-line orders finding the motion is “untimely.” No longer will proof of innocence, not obtained until after the trial, be held as not admissible in a State prisoner’s federal habeas corpus actions.
No longer will innocent citizens sit on prison bunks holding proof of their innocence in their hand, with no place to send it to have it heard.
If Chapter 10 votes to adopt the Resolution, and National adopts it as well, one hopes that the American Legion, Veterans of Foreign Wars and Disabled American Veterans will see the value of, and the need for, Fail-Safe Acts, and climb on the band-wagon.
All wrongfully convicted citizens are not fortunate enough to be able to actually prove their convictions are false. We will never be able to achieve perfection in our system of justice. But the Fail-Safe Acts advocated above are a giant step towards a more fair society.
The right of the individual to liberty is a relatively new social experiment in relation to the thousands of years in the history of mankind when the individual counted for little more than another piece of property to be exploited by the emperors, kings and lords of the world. Yet in every nation that has adopted the “rule of law,” and issued a “bill of rights” to its common citizens, peace and prosperity have followed, and unlike some other forms of government experienced, none have retreated to the old repressive governments of the past.
Yet that doesn’t mean that what we have cannot be improved. In fact, our whole way of life assumes our society will evolve with each generation into something better.
As much as I sometimes criticize what I see, hear and experience concerning our government, and our system of justice, I want you, my readers, to understand my beef is with the people running the system, not the ideals that underlie the system itself.
I’ve been told I have the tact and diplomacy of a hydrogen bomb. God willing, if the VVA adopts my resolution and begins lobbying for laws to free the wrongfully convicted, the flood of innocent citizens released by those laws will initiate a fundamental change in our court system, to the benefit of all society. That change, in my opinion, is long overdue.2
Until next time, this is Jim Love reporting From the Front Line.
This Resolution was not submitted timely, and I subsequently lost contact with Boggess after he moved.
In September 2012, the above Resolution was submitted to the Incarcerated Veterans Committee of the Vietnam Veterans of American National Headquarters in Silver Springs, MD. The Resolution was favorably received and will be presented at the 2014 National Convention for a vote.
Prisoners Have No Right to Accurate Records
From the Front Line
July 31, 20021
The Ohio Adult Parole Authority has no duty to maintain accurate records.*
IN 1995, A PRISONER at Chillicothe Correctional Institution was given a second five-year extension of his sentence by the Ohio Parole Board. The reason given by the parole board for this second five-year extension was the same reason given to him for the first five-year extension. The parole board stated that because the prisoner had been convicted of a rape in North Carolina in 1975, he was a risk to society. The problem with this is that the prisoner had never been in North Carolina in his life.
After the first parole board hearing the prisoner filed an appeal to the full board, stating that the records cited by the parole board were inaccurate, that he had never been to North Carolina, and that he had never been charged, arrested, or convicted of any rape in North Carolina. The parole board denied his appeal without comment, stating that their records reflected the conviction. The prisoner filed in the courts of Ohio, challenging the record maintained by the Ohio Adult Parole Authority as in error and inaccurate, that he had never been in North Carolina or charged, tried or convicted of any rape in North Carolina, or in fact, any charge in that state. The Ohio Attorney General’s Office replied to the prisoner’s complaint stating that he had failed to state a claim upon which relief could be granted because the Ohio Adult Parole Authority had no duty to maintain accurate records. His cause was dismissed with the Ohio court finding that a prisoner has no right to accurate records. As stated above, five years later the prisoner was again denied parole, based on erroneous and inaccurate records in his parole board file.
In 1994-95 Dale Normand, a prisoner at Chillicothe Correctional Institution was denied parole by the Ohio Adult Parole Authority. The reasons given by the parole board were that Dale’s crimes resulted in the loss of over $100,000 to the victims of the technical securities violations for which he had been convicted. The author of this column assisted Mr. Normand to file a Petition for Writ of Mandamus, in which clear and convincing evidence was adduced showing the loss to the victims of the technical security violations was incurred prior to when he became involved in the sale of the securities, and thus, he was not responsible for any loss to the victims. The State Attorney General’s Office responded to the petition, stating that prisoners have no right to accurate records, and the Petition was dismissed.
In a related matter the FBI launched a full field investigation that resulted in Charles Keith Plummer, the elected prosecutor of Guernsey County, Ohio, being recommended for federal prosecution for a criminal civil rights violation. The investigation uncovered proof of actual innocence being deliberately withheld from the court by the prosecutor in Dale’s case. (See, Normand v. McAninch, No. 98-3747 (6th Cir. 04/06/2000); 210 F.3d 372 (table); 2000 WL 377348.)
Even when faced with testimony and reports submitted by the FBI, the Ohio Adult Parole Authority refused to correct Dale Normand’s records, or grant him a parole. Upon the FBI contacting the governor’s office directly in 1996, Governor Voinovich personally intervened and ordered him released on parole in October 1996. Yet, even though the FBI submitted overwhelming proof of Dale’s innocence, the Ohio Adult Parole Authority has kept him on parole for the maximum of five years. Neither has the OAPA corrected his parole records, either to reflect his innocence of the charges for which he was convicted, or his lack of responsibility for any financial loss of the victims involved in the case. His parole will terminate by statute in October 2001.
In Ohio, prisoners and parolees have no right to accurate information in their master files and parole files. They have no right to correct inaccurate information in these government files. They have no state court forum or legal claim available to them by which they can correct inaccurate allegations or records. See, State ex rel. Hattie v. Goldhart, 69 Ohio St.3d 123, 630 N.E.2d 696 (1994), holding Ohio prisoners have no right to accurate records; State ex rel. Fain v. Summit County Adult Probation Department, 71 Ohio St.3d 658, 646 N.E.2d 1115 (1995).
In essence, the Department of Corrections and the Ohio Adult Parole Authority could have each prisoner’s record written by Stephen King and then depend upon that record to deny parole to the prisoner, without the prisoner having any recourse at law to correct those totally false and erroneous records.
Needless to say, this is a grave problem that needs to be challenged and addressed. This author has some suggestions for those prisoners faced with false and inaccurate records. In Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974), the U.S. Court of Appeals addressed a claim that Tarlton’s FBI “rap sheet” contained entries for arrests that were never prosecuted, and entries reflecting unconstitutional convictions that had later been overturned.
The court gives a compelling constitutional analysis of the reasons a citizen is entitled to accurate government records, but then specifically disclaims that its decision is made on constitutional grounds, relying instead on the language of 28 U.S.C. §534. The decision is too lengthy and detailed to discuss in depth in this column, and readers are strongly urged to study both the opinion and the dissent in this case.
In Pruett v. Levi, 622 F.2d 256 (6th Cir. 1980), the court states:
“Federal regulations control the collection and dissemination of information in criminal files by the FBI and by state and local law enforcement agencies. 28 C.F.R. [Code of Federal Regulations] §20.1 et seq. (1979). State and local enforcement agencies are required to formulate plans which will ensure the completeness and accuracy of criminal records, 28 C.F.R. §20.21(a); limit their dissemination, 28 C.F.R. §20.21 (b); provide the individual with access to his file, an opportunity to request corrections, an opportunity to have administrative review of the request, and an opportunity to appeal the denial of a request, 28 C.F.R. §20.21(g); and require the state or local agencies to inform the FBI and other agencies of any corrections, 28 C.F.R. §20.21 (g). State and local agencies must comply or face the possible loss of federal funds.”
Subpart C of the regulations establishes the procedures for the FBI and other federal agencies. Individuals are provided the right to receive copies of their criminal files; 28 C.F.R. §20.34(a). Individuals are instructed to apply for corrections to the contributing state or local agency; however, requests sent to the FBI will be forwarded to the proper contributing agency. 28 C.F.R. §20.34(b). The regulations declare that the contributing agency has the responsibility of assuring complete and accurate records, 28 C.F.R. §20.37, and they provide sanctions against the contributing agency for non-compliance. 28 C.F.R. §20.38. The regulations establish time guidelines for reporting dispositions. 28 C.F.R. §20.37. Pruett at 257. The sanctions can also include disconnecting the offending state agency from the National Criminal Identification Computer (NCIC) Network. See, Menard v. Saxbe, 498 F.2d 1017, 1026-1028 and nn. 28 & 41 (D.C. Cir. 1974).
For further authority in support of the right to accurate records, causes of action therefore, and the procedures required to be used, including exhaustion of state remedies, See Testa v. Winquist, 451 F.Supp. 388 (D.R.I. 1978); Utz v. Cullinane, 520 F.2d 467 (D.C. Cir. 1975); Doe v. Webster, 606 F.2d 1226 (D.C. Cir. 1979) and cases cited therein.
WARNING: Lastly, I have some very important information for all of you who are pursuing federal writs of habeas corpus. In Emerick v. Huffman, Case No. C3-99-051, pending in the U.S. District Court in Dayton, the
Prisoners Have No Right To Accurate Records
Ohio Attorney General’s Office was caught serving a full copy of the trial transcripts upon the incarcerated petitioner with the Return of Writ, but not filing a copy of the trial transcripts in the U.S. District Court as required by Habeas Rule 5. The Federal Public Defender’s Office representing Emerick discovered this when they were appointed as counsel. By the OAG serving Emerick with a copy of the trial transcripts, we were misled into believing that the U.S. District Court had a copy of the transcripts before it, when in fact, no copy had been filed by the state. 28 U.S.C. §2254(f) places a duty on Emerick to make sure the record is before the court, show his inability to file the record, and to request that the court order the state to file a complete record. The State, by misleading petitioners in Ohio in this manner, has apparently been receiving decisions on prisoner’s writs in this state based solely on the briefs filed and the opinion of the Ohio Court of Appeals. The Federal Public Defender’s Office filed a Petition for a Writ of Certiorari to the Common Pleas Court in the U.S. District Court in Emerick’s case, which was granted. This caused the full trial record to be transmitted and filed in his case. Anyone who has been, or is, litigating a habeas corpus needs to check and make sure the OAG did not do this also to them. A dismissal of a federal writ of habeas corpus by a judge without a review of the trial transcripts is reversible error, reason for the filing of a second or successive petition, or reason under Federal Rule of Civil Procedure 60(B) for Relief from Judgment for Fraud and Deception.
See Sizemore v. District Court, 735 F.2d 204, 207 (6th Cir. 1984); Vicks v. Bunnell, 875 F.2d 258, 259-60 (9th Cir. 1989); Ruff v. Kincheloe, 843 F.2d 1240, 1242-43 and n.5 (9th Cir. 1988). But see, Hamilton v. Vasquez, 882 F.2d 1469,1471 (9th Cir. 1989)
1 This article originally appeared in the author’s “From the Front Line” column in the Ohio S.O.R.T.’s newsletter, The Challenger. It is included in this book because the issue addressed is important to the fairness that citizens, even those convicted of crimes, deserve from the government. (7/10/06 – J.L.)
* An Ohio Supreme Court decision in 2016 changed this. (State v. Kieth)(citation omitted.) But for hundreds of years Ohio prisoners were reviewed for release by the Ohio Adult Parole Authority using records that had no guarantee of accuracy--and denied parole on those records.
Salem Witch Trials Of The Moment
August 2, 2002
Updated: October 10, 2009
ARE MEN ACCUSED OF sex offenses simply the target of the moment? Ninety-three percent of persons accused of crimes enter a plea of guilty. Of the remaining 7%, 75% who go to trial are convicted. I want to put names on some of those 75%:1
Dennis Fritz: 12 years imprisonment in Oklahoma prison for rape and murder.
Ronald Williamson: 12 years imprisonment in Oklahoma for rape and murder.
Marion Coakley: 4 years imprisonment in New York for robbery and rape.
Gary Dotson: Over 10 years imprisonment in Illinois for rape.
Walter Snyder: 7 years imprisonment in Virginia for rape and sodomy.
Robert Miller: 12 years on death row in Oklahoma for two murders and rapes.
Glen Woodall: 5 years imprisonment in West Virginia for two rapes.
William Harris: 10 years imprisonment in West Virginia for rape.
Jack Davis: 4 years imprisonment for murder in Texas.
Gilbert Alejandro: 4 years imprisonment for rape in Texas.
John Willis: 7 years imprisonment in Illinois for rape.
Tim Durham: 5 years imprisonment in Oklahoma for an 11-year-old girl’s rape.
Donald Reynolds: 10 years imprisonment in Illinois for two rapes.
Billy Wardell: 10 years imprisonment in Illinois for two rapes.
Marvin Mitchell: 7 years imprisonment in Massachusetts for an 11-year-old girl’s rape.
Rolando Cruz: 10 years on death row in Illinois for a 10-year-old girl’s sodomy and murder.
Alejandro Hernandez: 10 years on death row in Illinois for a 10-year-old girl’s sodomy and murder.
Kevin Byrd: 12 years imprisonment in Texas for rape.
Dennis William: 17 years imprisonment in Illinois for rape and murder.
Fredrick Daye: 3 years imprisonment in California for rape.
David Shephard: 11 years imprisonment in New Jersey for rape.
Steven Toney: 14 years imprisonment in Missouri for rape.
Ed Honaker: 10 years imprisonment in Virginia for rape.
Calvin Johnson, Jr.: 16 years imprisonment in Georgia for rape.
Kirk Bloodsworth: 8 years imprisonment in Maryland for rape.
Ronald Jones: 10 years imprisonment in Illinois for rape.
Kevin Green: 16 years imprisonment in California for his wife’s murder.
Isadore Zimmerman: 25 years imprisonment in New York for murder.
Ronald Cotton: 10 years imprisonment in North Carolina for rape.
Kerry Kotler: 11 years imprisonment in New York for rape.
David Vasquez: 4 years imprisonment in Virginia for rape and murder.
Clyde Charles: 17 years imprisonment in Louisiana for rape.
Samual Scott: 16 years imprisonment in Georgia for rape.
Douglas Echols: 16 years imprisonment in Georgia for rape.
Larry Mayes: 19 years imprisonment in Indiana for rape.
Peter Limone: 33 years imprisonment in Massachusetts for murder.
Frank Lee Smith: Died on death row in Florida after imprisoned 14 years for murder.
Dwight Love: 16 years imprisonment in Michigan for a shooting.
A.B. Butler: 17 years imprisonment in Texas for rape.
Bruce Lisker: 26 years imprisonment in California for his mother’s murder.
Juan Melandez: 17 years imprisonment in Florida for murder.
Salem Witch Trials Of The Moment
Chris Ochoa: 13 years imprisonment in Texas for rape and murder.
Richard Danziger: 13 years imprisonment in Texas for rape and murder.
Earl Washington: 16 years on Virginia’s death row for rape and murder.
Calvin Ollins: 13 years imprisonment in Illinois for rape and murder.
Larry Ollins: 13 years imprisonment in Illinois for rape and murder.
Omar Sanders: 13 years imprisonment in Illinois for rape and murder.
Marcellias Bradford: 13 years imprisonment in Illinois for rape and murder.
Kenneth Waters: 18 years imprisonment in Massachusetts for murder.
Wilfred French: 33 years imprisonment in Massachusetts for murder.
Jeff Pierce: 15 years imprisonment in Oklahoma for rape.
Edward Green: 1 year of imprisonment for a rape in the District of Columbia.
Bruce Nelson: 9 years imprisonment in Pennsylvania.
Charles Dabbs: 7 years imprisonment in New York.
Joe Jones: 6 years imprisonment in Kansas.
Steven Linscott: 10 years in prison in Illinois.
Leonard Callace: 5 years in prison in New York.
Dwayne Scruggs: 7 years in prison in Indiana.
Mark Diaz Bravo: 13 years in prison in California.
Dale Brison: 4 years in prison in Pennsylvania.
Brian Piszczek: 3 years in prison in Ohio.
Ronnie Bullock: 10 years in prison in Illinois.
Terry Chalmers: 8 years in prison in New York.
Dewey Davis: 9 years in prison in West Virginia.
Gerald Davis: 9 years in prison in West Virginia.
Walter D. Smith: 10 years in prison in Ohio.
Vincent Moto: 9 years in prison in Pennsylvania.
Richard Johnson: 4 years in prison in Illinois.
Thomas Webb: 13 years in prison in Oklahoma.
Verneal Jimerson: 11 years in prison in Illinois.
Kenneth Adams: 17 years in prison in Illinois.
Willie Rainge: 17 years in prison in Illinois.
Frederic Saecker: 6 years in prison in Wisconsin.
Victor Ortiz: 12 years in prison in New York.
Troy Webb: 7 years in prison in Virginia.
Anthony Hicks: 6 years in prison in Wisconsin.
Chester Bauer: 14 years in prison in Montana.
Ben Salazar: 15 years in prison in Texas.
David A. Gray: 20 years in prison in Illinois.
Perry Mitchell: 14 years in prison in South Carolina.
Dale Mahan: 12 years in prison in Alabama.
Ronnie Mahan: 12 years in prison in Alabama.
Habib Wahir Addal: 16 years in prison in New York.
James Richardson: 10 years in prison in West Virginia.
Anthony Gray: 8 years in prison in Maryland.
Larry Holdren: 15 years in prison in West Virginia.
McKinley Cromedy: 6 years in prison in New Jersey.
Herman Atkins: 12 years in prison in California.
Neil Miller: 10 years in prison in Massachusetts.
Armand Villasana: 1 year in prison in Missouri.
William Gregory: 7 years in prison in Kentucky.
Eric Sarsfield: 13 years in prison in Massachusetts.
Roy Criner: 10 years in prison in Texas.
Jerry Watkins: 13 years in prison in Indiana.
Larry Youngblood: 15 years in prison in Arizona.
Carlos Lavernia: 15 years in prison in Texas.
Anthony Robinson: 13 years in prison in Texas.
James O’Donnell: 2 years in prison in New York.
Willie Nesmith: 18 years in prison in Pennsylvania.
Danny Brown: 19 years in prison in Ohio.
Jerry Frank Townsend: 22 years in prison in Florida.
Calvin Washington: 14 years in prison in Texas.
Charles Irvin Fain: 18 years in prison in Idaho.
Eduardo Velasquez: 13 years in prison in Massachusetts.
Anthony Michael Green: 13 years in prison in Ohio.
John Dixon: 9 years in prison in New Jersey.
Lesly Jean: 19 years in prison in North Carolina.
David Shawn Pope: 15 years in prison in Texas.
Victor Larue Thomas: 15 years in prison in Texas.
Marvin Anderson: 19 years in prison in Virginia.
Richard Alexander: 3 years in prison in Indiana.
Leonard McSherry: 13 years in prison in California.
Mark Webb: 14 years in prison in Texas.
Bruce Godschalk: 15 years in prison in Pennsylvania.
Ray Krone: 10 years in prison in Arizona.
Hector Gonzalez: 7 years in prison in New York.
Alejandro Dominguez: 12 years in prison in Illinois.
Clark McMillan: 22 years in prison in Tennessee.
Larry Johnson: 18 years in prison in Missouri.
Eddie Joe Lloyd: 17 years in prison in Michigan.
Arvin McGee: 13 years in prison in Oklahoma.
Jimmy Ray Bromgard: 15 years in prison in Montana.
Albert Johnson: 10 years in prison in California.
Bernard Webster: 19 years in prison in Maryland.
Antron McCray: 13 years in prison in New York.
Kevin Richardson: 13 years in prison in New York.
Yusef Salaam: 13 years in prison in New York.
Raymond Santana: 13 years in prison in New York.
Kharey Wise: 13 years in prison in New York.
Paula Gray: 24 years in prison in Illinois.
David Brian Sutherlin: 17 years in prison in Minnesota.
Gene Bibbins: 16 years in prison in Louisiana.
Julius Ruffin: 22 years in prison in Virginia.
Dennis Maher: 19 years in prison in Massachusetts.
Eddie James Lowery: 21 years in prison in Kansas.
Michael Mercer: 11 years in prison in New York.
Paul D. Kordonowy: 14 years in prison in Montana.
Dana Holland: 10 years in prison in Illinois.
Kenneth Wyniemko: 9 years in prison in Michigan.
Mark Reid: 6 years in prison in Connecticut.
Michael Evans: 26 years in an Illinois prison.
Paul Terry: 26 years in an Illinois prison.
Lonnie Erby: 17 years in a Missouri prison.
Salem Witch Trials Of The Moment
Steven Avery: 17 years in a prison in Wisconsin.
Calvin Willis: 21 years in a prison in Louisiana.
Calvin Lee Scott: 20 years in a prison in Oklahoma.
Ulysses Ridriguez Charles: 19 years in a prison in Massachusetts.
Nicholas Yarris: 21 years in a prison in Pennsylvania.
Stephen Cowans: 6 years in prison in Massachusetts.
Darryl Hunt: 19 years in prison in North Carolina.
Anthony Powell: 12 years in prison in Massachusetts.
Josiah Sutton: 5 years in prison in Texas.
Lafonso Rollins: 11 years in prison in Illinois.
Ryan Matthews: 5 years in prison in Louisiana.
Wilton Dedge: 22 years (Retrial in 1984) in prison in Florida.
Arthur Lee Whitfield: 22 years in prison in Virginia.
Barry Laughman: 16 years in prison in Pennsylvania.
Clarence Harrison: 17 years in prison in Georgia.
David Allen Jones: 9 years in prison in California.
Bruce Dallas Goodman: 18 years in prison in Utah.
Brandon Moon: 16 years in prison in Texas.
Dennis Brown: 20 years in prison in Louisiana.
Peter Rose: 9 years in prison in California.
Michael Anthony Williams: 24 years in prison in Louisiana.
Randy Ayers: 9 years in prison in Ohio.
Ronald Addison: 9 years in prison in Maryland.
Joesph Arnold: 2 years in prison in Tennessee.
Donte Booker: 18 years in prison in Ohio.
Robert Clark: 24 years in prison in Georgia.
David Crone: 18 years in prison in Washington.
Willie Davidson: 11 years in prison in Virginia.
Luiz Diaz: 26 years in prison in Florida.
Alfredo Domenech: 18 years in prison in Pennsylvania.
Thomas Doswell: 19 years in prison in Pennsylvania.
Corey Eason: less than one year in prison in Illinois.
Clarence Elkins: 7 years in prison in Ohio.
Barry Gibbs: 19 years in prison in New York.
Jennifer Hall: 1 year in prison in Missouri.
Dennis Halstead: 18 years in prison in New York.
Olmado Hildalgo: 14 years in prison in New York.
Harold Hill: 15 years in prison in Illinois.
Troy Hopkins: 10 years in prison in Virginia.
Entre NaxKarage: 7 years in prison in Texas.
Justin Kirkwood: 2 years in prison in Pennsylvania.
John Kogut: 17 years in prison in New York.
Marie LaPinta: 22 years in prison in New York.
Anthony McKenzie: less than one year in prison in Georgia.
Keith Philips: 1 year in prison in Ohio.
Sergio Rodillo. Jr.: 11 years in prison in Florida.
John Restivo: 18 years in prison in Ne York.
George Rodriguez: 18 years in prison in Texas.
Ivan Serrano: 18 years in prison in Pennsylvania.
Michael Sipin: 2 years in prison in Washington.
Larry Souter: 13 years in prison in Michigan.
Gilbert Stokes: 3 years in prison in Florida.
Phillip Thurman: 20 years in prison in Virginia.
Keith Turner: 4 years in prison in Texas.
Frederick Wallen: 3 years in prison in Tennessee.
Leo Waters: 21 years in prison in North Carolina.
Michelle Wesson: 2 years in prison in Florida.
Harold Wilson: 17 years in prison in Pennsylvania.
Anthony Woods: 18 years in prison in Missouri.
Dan Young: 15 years in prison in Illinois.
Evan Zimmerman: 4 years in prison in Wisconsin.
Ken Marsh: 21 years in prison in California.
Nate Lewis: 5 years in prison in Ohio.
Anthony Porter: 16 years in prison in Illinois.
Arthur Mumphrey: 18 years in prison in Texas.
Robert Gayol: 5 years in prison in Illinois.
Edar Duarte Santos: 5 years in prison in Illinois.
Luiz Ortiz: 5 years in prison in Illinois.
Ronnie Gamboa: 5 years in prison in Illinois.
Rodney Addison: 9 years in prison in Maryland.
John Robert Ballard: 7 years in prison in Florida.
Alan Crotzer: 24 years in prison in Florida.
Gary Lamar James: 26 years in prison in Ohio.
Timothy Howard: 26 years in prison in Ohio.
Keith E. Turner: 4 years in prison in Texas.
Michael Anthony Williams: 24 years in prison in Louisiana.
Anthony D. Woods: 18 years in prison in Missouri.
Orlando Bosquete: 13 years in prison in Florida.
John Briscoe: 23 years in prison in Missouri.
Allen Coco: 11 years in prison in Louisiana.
Jeff Deskovic: 16 years in prison in New York.
Scott Fappiano: 21 years in prison in New York.
Eugene Henton: 2 years in prison in Texas.
Willie Jackson: 17 years in prison in Louisiana.
Billy Wayne Miller: 22 years in prison in Texas.
Alan Newton: 21 years in a prison in New York.
James Ochoa: 1 year in a prison in California.
Marlon Pendleton: 14 years in prison in Illinois.
Larry Peterson: 18 years in prison in New Jersey.
Billy James Smith: 19 years in prison in Texas.
James Tillman: 18 years in prison in Connecticut.
Douglas Warney: 10 years in prison in New York.
Andrew Whitley: 18 years in prison in Pennsylvania.
Antonio Beaver: 10 years in prison in Missouri.
Larry Bostic: 18 years in prison in Florida.
Roy Brown: 16 years in prison in New York.
Anthony Capozzi: 22 years in prison in New York.
Dwayne Dail: 20 years in prison in North Carolina.
Cody Davis: 1 year in a prison in Florida.
Larry Fuller: 19 years in prison in Texas.
James Giles: 10 years in prison in Texas.
Andrew Gossett: 7 years in prison in Texas.
Salem Witch Trials Of The Moment
Byron Halsey: 22 years in prison in New Jersey.
Travis Hayes: 9 years in prison in Lousiana.
Chad Heins: 13 years in prison in Florida.
Marcus Lyons: 3 years in prison in Illinois.
Curtis McCarty: 22 years in prison in Oklahoma.
Jerry Miller: 25 years in prison in Illinois.
James Waller: 10 years in prison in Texas.
Gregory Wallis: 18 years in prison in Texas.
John Jerome White: 20 years in prison in Georgia.
Willie Williams: 22 years in prison in Georgia.
Michael Blair: 15 years in prison in Texas.
Kennedy Brewer: 13 years in prison in Mississippi.
Dean Cage: 14 years in prison in Illinois.
Charles Chatman: 27 years in prison in Texas.
William Dillon: 27 years in prison in Florida.
Nathaniel Hatchett: 11 years in prison in Michigan.
Arthur Johnson: 16 years in prison in Mississippi.
Rickie Johnson: 25 years in prison in Louisiana.
Robert McClendon: 18 years in prison in Ohio.
Thomas McGowan: 23 years in prison in Texas.
Steven Phillips: 25 years in prison in Texas.
Ronald Gene Taylor: 14 years in prison in Texas.
Patrick Waller: 16 years in prison in Texas.
Joseph White: 20 years in prison in Nebraska.
Joseph Abbitt: 18 years in prison in North Carolina.
Steven Barnes: 20 years in prison in New York.
Victor Burnette: 8 years in prison in Virginia.
Timothy Cole: 14 years in prison in Texas.
James Dean: 5 years in prison in Nebraska.
Joseph Fears Jr.: 26 years in prison in Ohio.
Kathy Gonzalez: 6 years in prison in Nebraska.
Johnnie Lindsey: 27 years in prison in Texas.
Lawrence McKinney: 31 years in prison in Tennessee.
Chaunte Ott: 13 years in prison in Wisconsin.
Ricardo Rachell: 6 years in prison in Texas.
Miguel Roman: 20 years in prison in Connecticut.
Debra Shelden: 6 years in prison in Nebraska.
Robert Lee Stinson: 25 years in prison in Wisconsin.
Ada JoAnn Taylor: 20 years in prison in Nebraska.
Thomas Winslow: 20 years in prison in Nebraska.
James Lee Woodard: 27 years in prison in Texas.
Yancy Douglas: 16 years in prison in Oklahoma
Paris Powell: 16 years in prison in Oklahoma
Most of the above men and women were proven to be innocent by DNA evidence. All were found innocent and released from prison. One died of cancer while awaiting execution.
Over another 100 prisoners have been released from prisons in California due to police misconduct uncovered in the Los Angeles Rampart investigation.
The more than 90% of prisoners who entered a plea of guilty are sometimes very closed-minded when someone they are imprisoned with claims they are innocent. This, I believe, is because, at least to them, the
system seems to be working as they were taught as children it was supposed to work. They did the crime, they got caught, and they were sent to prison.
But for some of us the system broke down. For some of us the equal justice we were promised became an unending nightmare. If an allegation of rape is false, and no rape ever occurred, there is no biological evidence to test. Yet in today’s society the unsupported, uncorroborated testimony of the accuser is sufficient, by law, to support a conviction.
In 12 years of being a jailhouse lawyer, reading transcripts of hundreds of trials, and reviewing tens of thousands of reported cases, my greatest doubts of guilt always keep returning to those cases where men have been convicted of a sex offense. The charge was usually brought years later, and the conviction was based solely on the testimony of the alleged victim without any medical examination or other evidence adduced to support the contention that a crime of any type had actually occurred.
The prosecutors, and victim’s services who work for the prosecutor’s office, generate so many clichés in relation to these types of convictions that it makes me question why they do not feel the evidence alone is sufficient. If a defendant pleads innocent, he is “in denial.” Is it possible the prosecutors are “in denial” of the fact that some of these charges must be false? Does not the above list of men’s lives that have been totally destroyed prove that? Almost all are rape cases.
Are men accused of sex offenses simply the target of the moment? Have you studied history? It seems as if the local and national law-enforcement political machine has always had a “Public Enemy No.1” to get up and rant and rave about, on their soap box at election time. Where do I start? How far back in history do you want to go? Spanish Inquisition? Indians? Moonshiners and Prohibition? The “Jewish” problem in Nazi Germany? Communists? Women’s Suffrage? Drug Traffickers? Soviet Union? Illegal Immigrants? Spies? Terrorists? Are these perhaps all nothing more than the Salem Witch Trials of the moment?
Allen Burke hosted a talk show out of Miami in the early 1980s. He said something one night I have remembered for 20 years. He was talking about how in the 1950s it was common for a man to work eight hours a day and be able to support his family. It was common for the wife not to work, and to stay home taking care of the children and the house. In most instances of this, it was not because she couldn’t work, because Rosie the Riveter had eliminated that myth, it was because she didn’t want, or need, to work. She stayed home and instilled common sense and moral values in the children. The husband’s income was sufficient to provide a decent lifestyle.
Then the government started raising taxes and imposing new taxes on items never before taxed, and corporations started raising prices. Inflation set in, and both the husband and the wife found it necessary to work in order to be able to progress and plan for their children’s education and their retirement.
Worse yet, as time passed, eight-hour days became ten-hour days, or more. Burke stated; “They have the American people on a treadmill. Both the husband and wife work twelve hours a day, six days a week, just to make ends meet, while paying the government one-half their income a year, either in direct or hidden taxes.” He said that after working twelve hours a day, six days a week, the people, “were so tired by the time they did get home that they didn’t have the energy to go burn Washington to the ground and solve the problem by starting over.”
As to innocent citizens in prison also, the government has this country on a treadmill. The whole foundation of why the courts refuse to recognize innocence as a constitutional right is the judicially created doctrine of preserving the “finality” of state court convictions. The courts hold the state’s interest in keeping down the cost of convictions justifies the quick end of appeals and challenges to convictions to save the state’s money and resources.
Salem Witch Trials Of The Moment
To enforce those holdings and to bring appeals to an end, the rules of procedure place time limits on appeals, and now, habeas corpus petitions in federal courts.
Further, a prisoner is prohibited from raising an issue that could have been raised at an earlier time. He or she is prohibited from raising an issue, already decided, for a second time, no matter how unjust, or inept, the first decision on that issue was. Attorneys who failed to raise an issue, or who presented an issue incompetently, are subjected to a review of their performance that equates to a “mirror test.” If the attorney appeared to have been breathing (in some cases even while sleeping), then the prisoner is presumed to have received competent representation – even when the attorney assigned to his appeal was an “of counsel” fresh out of law school.
If the State fails to raise or argue a defense against the appeal, not to worry, the judge will raise it and apply it for the State. But if the defendant fails to raise or argue an error, or a procedural point, that any competent legal mind could discern from the record while reviewing it, the judge will hold the issue to be waived by the defendant and uncorrectable error.
All of this leads to a paper chase where facts important to the determination of the truth are either conveniently ignored, or held as not properly preserved in some distant lower court.
I ask you, what legitimate government interest is there in the “finality” of the conviction of a citizen who can prove he is innocent? In terms of providing humane living conditions in prisons, required by the 8th Amendment’s prohibition against cruel and unusual punishment, courts have consistently held the impact on a state’s treasury is not to be considered.
Why then is the concept of “finality,” which is conceded to exist to save the state the cost of endless litigation, sufficient as a government interest to prevent a prisoner from presenting – in any court – evidence proving that prisoner’s innocence?
In Herrera v. Collins, 506 U.S. 809 (1992), Chief Justice Rehnquist stated that because “innocence” is not specifically mentioned in the Constitution, a claim of innocence does not arise to a constitutional level.
With all due respect, neither does the Constitution specifically discuss abortion, adoption, marriage, false imprisonment, or incest, but each of these has been found to involve constitutional rights. Is not the right to “liberty” mentioned somewhere in that great document? Is not an imprisoned innocent citizen’s “liberty” infringed upon? Does the impact on a State’s treasury of a prisoner litigating his or her innocence somehow exceed the cost to the State of continuing to imprison that prisoner for, oh let’s say, 40 years to life, under conditions meeting the 8th Amendment’s requirements?
Is it more expensive to keep an innocent prisoner for life, or give him a chance to prove his innocence and be released? The above-mentioned 288 persons spent a combined total of more than 3,850 years in prison. At an average cost of $22,000 a year, that’s $84,700,000 of wasted taxpayer money.
I find it hard to believe that someone, somewhere, couldn’t hold 288 court hearings for less than $85 million.
Granted, in most of the above cases the DNA technology that set them free wasn’t available for years. But two concerns arise at that point. First, if you thoroughly read and review the cases above, it quickly becomes obvious the majority of wrongful convictions were caused by police and prosecutorial misconduct. It is explained in Actual Innocence by Barry Scheck, Peter Newfield and Jim Dwyer (Doubleday 2000), that of 361 murder cases reversed for prosecutorial or police misconduct since 1963, no prosecutor or police officer has been disciplined for their misconduct. Id. at 175.
Therein lies the problem. We’ve come full circle. Elected police chiefs and elected prosecutors cannot advance in their political careers if the public is repeatedly subjected to news stories of prisoners whom they
have arrested, testified against, convicted and sent to prison, having proven themselves innocent and being released from prison.
Ex-prosecutors are your judges and legislators. They have placed innocent men and women in prison at one time or another in their career. As long as they, as judges and legislators, prevent those people from proving themselves innocent, they don’t have to worry about it becoming an issue in the next election campaign.
The problem is self-perpetuating. Maybe Allen Burke’s suggestion has some arguable merit.
1 The following list is incomplete. It is compiled from the book Actual Innocence by Barry Scheck, Jim Dwyer and Peter Neufeld, Doubleday, 2000; a March, 2005 list on the web-site of the Innocence Project (http://innocenceproject.org) and the last two issues of “Justice Denied” at www.justicedenied.org. (7/11/06.). The Innocents Database lists more than 2,900 innocent persons in its database. (http://forejustice.org/search_idb.htm)
Why “Megan’s” Laws Are Unconstitutional And Many Sex
Offense Convictions Doubtful
From the Front Line
Originally published in “The Challenger” by Ohio S.O.R.T.
December 1, 2002 (updated April 18, 2009)
The best-kept secret in today’s society is that the truth has become a pliable commodity, distorted to fit political agendas, preying, for the sake of votes, on the most unpopular of all crimes.
FOR THE PAST YEAR I have been advising several prisoners at Lebanon Correctional Institution facing Classification as a Sexual Predator on how I believe they can prevail at their hearings and avoid a sexual predator label. O.R.C §2950.02(A)(2) specifically gives the “high risk” of a convicted sex offender committing another sex offense after release from prison as the legislature’s “reason” the statute and reporting requirements are needed to protect the public.1 Unfortunately this urban myth is the basis for all of this country’s sex offender registration laws.
Before I start spouting statistics at you, I want to inform you that the only man at Lebanon Correctional Institution to follow my advice won at his sexual predator hearing. Instead of being required to report his address every 90 days for the rest of his life, and subjected to community notification of all persons within 1,000 feet of his residence for the rest of his life, he was ordered to report his address once a year for the five years he was on post-release control only, with no reporting requirement after his post-release control. Two other men tried to present the arguments below, and even sent their court-appointed attorneys the statistics below, but both attorneys ran roughshod over the men at their hearings and refused to present the following argument. This was in spite of the attorneys promising prior to the hearing they would present the argument. The man who won had the cojones to stand up in the courtroom and pull the following statistics out of his jump-suit pocket, present it to the court, and force the court to preserve his claim on the record that the sexual predator statute is “arbitrary and capricious,” and “creates an arbitrary class of persons” in violation of the Equal Protection Clause of the 14th Amendment.
Upon the court being presented with the following evidence and statistics, an “in-chambers” conference was immediately called, and upon returning from the conference, the judge denied the prosecution’s request to find that the man was a sexual predator.
So if any reader believes what I have to say is worth using, be prepared to commit it to memory and present it yourself, because it appears the public defenders are in collusion with the state on this and will lead you on, mouthing what you want to hear before the hearing, then abandoning the argument and failing to present it at the hearing. One public defender just did that to a very good friend of mine at Warren Correctional.2
In United States v. Mound, 157 F.3d 1153, 1154 (8th Cir. 1998) (en banc), four dissenting judges cite law review articles citing statistics finding the recidivism rate of released sex offenders is the second lowest rate of all convicted felons. In State v. Krueger, No. 76624, 2000 WL 1876391 (December 19, 2000, Eighth Judicial District of Ohio, unpublished), two female judges reversed a sexual predator adjudication, finding the statute is based on a false assumption and, in essence, an “old wives’ tale” of popular beliefs contradicted by empirical data.
By writing the National Criminal Justice Reference Center, P.O. Box 6000, Rockville, Maryland 20849-6000, you can obtain the following reports, as well as all U.S. Department of Justice statistics cited in this book:
“Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault,” NCJ-163392 (February 7, 1997), finds the recidivism rate of 2,214 convicted rapists released from prison was 7.7% after three years. The only category of crimes with a lower recidivism rate was those persons convicted of murder (6.8%).
“Recidivism of Prisoners Released in 1994,” NCJ-193427 (June 2002), finds the recidivism rate for new offenses by 3,138 convicted rapists released from prison was 2.5% after three years. The only category of crimes with a lower recidivism rate was those convicted of murder (1.2%.).
In April, 2001, the Ohio Department of Rehabilitation and Correction (ODRC) released a report on the recidivism rate of released sex offenders. Ten years after their release in 1989 from Ohio prisons, the recidivism rate of 879 sex offenders for a new sex offense was 8%. The report is “Ten-Year Recidivism Follow-Up of 1989 Sex Offender Releases,” Office of Policy, Bureau of Planning and Evaluation, Paul Konicek, Principal Researcher, (available at, www.drc.ohio.gov/web/Reports/Ten_Year_Recidivism.pdf (last visited August 9, 2009).
The 2001 ODRC study describes its results as typical, citing to:
Gibbons, Soothill and Way 1979, in Furby, L., Weinrott, M. R., & Blackshaw, L. (1989). Sex offender recidivism: A review. Psychological Bulletin, 105, 3-30. Furby, Weinrott and Blackshaw, 1989. (Twelve-year study finds sex offender recidivism is 4%).
Gibbons, Soothill and Way 1980, in Furby, L., Weinrott, M. R., & Blackshaw, L. (1989). Sex offender recidivism: A review. Psychological Bulletin, 105, 3-30. (Thirteen-year study finding sex offender recidivism rate of 12%).
Hanson and Bussiere, 1996. (Mega-analysis of sixty-one sex offender studies with a total of 28,972 sex offenders, finding recidivism rate for new sex offenses five years after release was 13.4%).
New York Department of Corrections, a nine-year follow-up study found a 6% rate of recidivism for new sex offenses.
These studies are cited on page 11 of the 2001 ODRC report. On page 15 of the report, the overall findings are summarized. The ODRC finds:
“Contrary to the popular idea that sex offenders are repeatedly returning to prison for further sex crimes, in this population a sex offender recidivating for a new sex offense within 10 years of release was a relatively rare occurrence.” Id. at page 15, ¶4
The entire purpose of the reporting, registration and community notification laws mandated by the Adam Walsh Act is to purportedly protect the public from sex offenders under the assumption they have a “high risk” of committing new sex offenses once released from prison. This assumption is erroneous as is shown by the above statistical data from the United States Department of Justice and two of the largest state correctional systems in this nation.
The whole basis and cloth of the reason these laws were enacted by both Congress and state legislatures is undermined by these statistics. This, as explained below, has serious legal consequences, because laws that are based on arbitrary classifications and distinctions are wholly unconstitutional. As of the writing of this, no one has challenged the Adam Walsh Act as an arbitrary law.
In Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326 (1992), the United States Supreme Court held:
“The appropriate standard of review is whether the difference in treatment between [Classes of persons] rationally furthers a legitimate state interest. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement Bd. v. Fritz,
Why “Megan’s” Laws Are Unconstitutional
449 U.S. 166, 174, 101 S.Ct. 453, 459 (1980), the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724 (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446 (1985), 105 S.Ct., at 3257.” Id. at 2332.(emphasis added.)
The legal issue raised by arbitrary laws is further clarified in Minnesota v. Clover Leaf Creamery Co., supra, 723-4:
“But states are not required to convince the courts of the correctness of their legislative judgments. Rather, ‘those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision maker.’ Vance v. Bradley, 440 U.S. 93, 111 (1979). See also, Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 425 (1952); Henderson Co. v. Thompson, 300 U.S. 258, 264-265 (1937). Although parties challenging legislation under the equal protection clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U.S. 144 (1938), FN8[,] they cannot prevail so long as ‘it is evident from all considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.’” Id. at 154.
It is my belief that the above statistics, coming from so many diverse authorities, give rise to the assertion that the “high risk” of recidivism of sex offenders has been wrongfully assumed by legislators, and in light of these statistics, that arbitrary assumption is not “debatable” to any reasonable mind. As stated by the judges of the 8th Judicial District of Ohio (Cleveland) in State v. Krueger, supra, in relation to the “common knowledge” often cited by courts and legislators to justify these laws, “We are left with a runaway quote [of statistics] making unsupported, unchecked factual claims that are then adopted as ‘facts’ in subsequent cases.” Id. at 4.
The Adam Walsh Act, and the state sex offender registration laws that have been enacted as mandated by that act, are, in my opinion, arbitrary and capricious laws that violate the Due Process and Equal Protection Clauses of the 14th Amendment, and the constitutionally recognized right to privacy. Additional case authority supporting my opinion are the cases of Eisenstadt v. Baird, 405 U.S. 438, 446-455, 92 S.Ct. 1029, 1035-1039 (1972); Banker Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 82-84, 108 S.Ct. 1645, 1653 (1988); and, Engquist v. Oregon Dept. of Agr., 128 S.Ct. 2146, 2152-2156 (2008)(discussing the prohibition against arbitrary classes of persons).3
As stated in United States v. McKenzie, 99 F.3d 813, 817-818 (7th Cir. 1996), “legislative penalties imposed on certain classes of persons must ‘rest on real and not feigned differences,’ must ‘have some relevance to the purpose for which the classification is made,’ and must not subject class members to wholly arbitrary treatment.” Id. at 817. Arbitrary intrusion by the police into the privacy of a citizen is prohibited. See, Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 120. (1951); Griswald v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965).
The right to be free from arbitrary and capricious government classification resulting in the infringement of the rights to privacy and association are foundational concerns of the Bill of Rights. “No bright line divides the merely foolish from the arbitrary law.” Schweiker v. Wilson, 450 U.S. 221, 243 (1981). “The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility...” Phyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 2410 (1982) (Berger, J. dissenting).4
The low recidivism rate for new sex offenses by convicted sex offenders is one of the best kept secrets in today’s society. The politicians are engaged in theatrical propagation of a lie in order to obtain votes. The courts are even lying. In McKune v. Lile, 122 S.Ct. 2017, 2024 (2002), the United States Supreme Court cited to the same 1997 Department of Justice statistical study I cite to above. (“Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault.” Bureau of Justice Statistics, U.S. Dept. of Justice, NCJ-163392, 2/7/1997).
But the Court distorts the statistics by writing a vague and confusing sentence that other courts have quoted to support findings that sex offender recidivism is very high, contrary to the report cited. The U.S. Supreme Court did the same type of disingenuous distortion in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072 (1997), by painting a single defendant with a broad brush used by other courts to support statistically unsupportable positions when ruling on sex offender appeals against classification. (See, comments in State v. Krueger, supra, regarding Hendricks being misleading to other courts regarding recidivism rates of sex offenders.).
The report cited in McKune, gives a recidivism rate of 7.7%, but the U.S. Supreme Court decision in McKune, unless very carefully parsed, gives the inference the report gives an 80% recidivism rate. This is intellectually dishonest and a false rationalization of a bad decision.5
More dangerous is how blind acceptance of these distortions of the truth affect a trial. A judge is charged with performing a balancing test of “probative vs. prejudicial” under Evidence Rule 403, when faced with the introduction of prior convictions or uncharged accusations by the prosecutor. These judges are just as susceptible to believing the commonly held misconception, i.e., that sex offenders have a high rate of recidivism, as is the general public or legislators. A judge wrongly believing that “all of them do it again,” will place a very high probative value (meaning goes to prove a relevant issue), on any prior conviction or uncharged allegation. The judge will consequently rule that the “probative” value outweighs the “prejudice” to the defendant, and allow the introduction of the evidence. This tilts the playing field at trial towards a conviction. It is important to understand that it is only in the cases where there is no physical evidence of guilt (he said, she said cases), that it is most common for “other acts” evidence, like a prior conviction, to be used by the prosecutor. A prosecutor that has DNA evidence doesn’t need “other acts” (or commonly called “character evidence”), to convince the jury of guilt.
To show how dangerous the dissemination of erroneous statistics can be, the U.S. enacted Evidence Rules 412 to 415 based on the wrongful assumption that a previous sex offense conviction is strong probative evidence at the trial of a new sex offense accusation, and is always allowed into evidence. Bear in mind that prior conviction evidence is not allowed in robbery, murder, arson, assault, drug or any other trial for any other crime –only in sex offense trials. How sex offense trials are singled out for special rules is important to note.
So we have a trial court judge misinformed about how much weight to give to a prior conviction, a public defender who does not know any better, Congress misinformed and passing laws to mandate evidence of questionable value to be introduced as the Gospel, and juries with no better information. Is it any wonder that the vast majority of almost three hundred DNA exonerations are from sex offense convictions? Contrary to popular belief, the evidence relied on to obtain the sex offense convictions overturned by DNA evidence is not rock-solid, but typically rather “shaky,” and typically amounts to little more than someone pointing a finger and saying, “He did it.”
Prosecutorial “sound bite” press releases, TV shows like America’s Most Wanted (where an accusation is adequate to allow a person to be called “scum” on national TV), Law & Order: Special Victims Unit, and even the now-canceled First Monday (stating the recidivism rate of sex offenders was 80% in its next-to-the-last show), apparently provide all the “education” a juror receives. I see very few defense attorneys who challenge the “old wives tale” that sex offenders have a high rate of recidivism. Juries, hearing a man was convicted of a sex offense 10, 20 or 30 years ago, quit even listening to the evidence being presented at the trial. In their mind the man is already convicted.
The truth has become a pliable commodity in this nation, distorted to fit political agendas that prey, for the sake of votes, on the most unpopular of all crimes. Attached to all prosecutor’s offices now are “Victim Service Offices” which perpetuate the myths related above, along with Victim Advocate groups. For some, like Jim Bedra, the “Victim’s Advocate” on the Ohio Adult Parole Authority, being a victim has become a profession and the truth matters little as long as their personal vendetta’s are achieved. Bedra’s “Information Sheet” prepared in my case by
Why “Megan’s” Laws Are Unconstitutional
him only contains one sentence in four paragraphs that can be said to be supported by the transcripts and record of my convictions. The rest of his alleged “facts” are distortions, twisting of the testimony, or simply untrue.
I observe that the specific constitutional right to the presumption of innocence is abrogated by court practices like those mandated by Evidence Rules 412 to 415. The combination of most jurors believing that sex offenders have a high rate of recidivism, and the mandated introduction of prior convictions by these rules, ensure the accused will not be presumed innocent by the jury. That conclusion is inescapable given the circumstances. It undermines the concept of Equal Justice and mocks the very basis of our society – the Rule of Law – upon which this nation, and the international community of nations, are founded.
More distressing is that we are living in a time of intellectual dishonesty introduced into our court system through the ultra-conservative appointees of Presidents Reagan and the two Bushes. During his tenure as President, the latter President Bush placated the ultra-conservative wing of the Republican Party by handing them control of the federal judiciary through the appointment of over 300 ultra-conservative judges during his eight years in office. Assisted by Senators Orrin Hatch and Arlen Spector,6 only right-wing conservative judges made it through the Senate Judiciary Committee to the floor of the Senate for confirmation.
In place of Equal Justice we have only the appearance of justice in this nation. Too many cases are now hidden from public scrutiny by being designated as “Unpublished.” The “Published” decisions are generally carefully thought out and well reasoned, even if they are controversial or appear harsh towards the defendant. Unpublished opinions hide a nightmare of prejudicial decisions not based on the law, but on political expedience and what the judges pre-decide they want their decision to say. Unpublished decisions are seldom well researched and even less frequently does the judge who wrote the opinion appear to have more than a sketchy grasp of the facts of the case. Of course, without an intimate knowledge of the facts it is impossible to apply the law correctly to those facts.
A large majority of sex offense cases, including mine, fall into the “Unpublished” category. I sometimes believe the judges know what they are going to decide regardless of what the law requires, and are not necessarily proud of the intellectual dishonesty they display in arriving at that decision.
From bad unpublished decisions, additional problems arise. Those decisions are later cited as “persuasive authority” in subsequent cases, and the comedy of errors becomes a snowball rolling down a long and seemingly endless mountain. At the bottom of that mountain is a little village called “Truth” that gets smashed in the process.
Like the little grey ill-lit room behind the curtain in the back of the bookstore that everyone pretends is not there, sex offense cases are hidden from scrutiny. Maybe you should even pretend you did not read this. After all, we don’t want them looking in your bedroom window do we?
Until next time, this is Jim Love reporting From the Front Line.
Shortly after this article was published by the Ohio S.O.R.T. in their newsletter, The Challenger, the Ohio legislature amended the statute and removed the phrase referring to the “high risk” of recidivism. That does not defeat the fact that the entire debate on the bill was subsumed with the assumption of the truth of erroneous statistics.
In at least some of the States, the office of public defender is put out to the lowest bidder. In some States, there is no such office.
The substantive due process right to be free from arbitrary government conduct is discussed more fully in the chapter, “Why There Is An Evolving Unfairness In the Courts Of The United States.”
The right to be free from arbitrary and capricious government conduct is more fully explained in the chapter, “Why There is Evolving Unfairness in The Courts Of The United States,” infra.
One can hardly expect a handful of unelected judges to stand up against an elected legislature if the court is, or supposes it is, acting only by majority. The thesis that the Constitution – in contrast to the Articles of Confederation
– does not authorize the judges of the U.S. to act other than unanimously is developed by Brian W. Firth in The Firm League of Friendship: A Restoration of the Classical Studies. Elderberry Press, Oakland, OR. 2003.
Spector’s recent jump to the Democratic Party led to comments on his advocacy of ultra-conservative judges.
“A Rose By Any Other Name...”1
From the Front Line
September 4, 2009
I HAD WRITTEN THIS chapter once before, under a different title. My publisher suggested that some of the content that suggested civil disobedience actions in regards to the Adam Walsh Act were simply unworkable and impractical. He more or less suggested that I had been in prison too long to understand what today’s society is actually like. He may well be right, because some of the comments he made to me, in regards to the response society and the police would have to some of the civil disobedience acts I had suggested, do not sound like the United States I grew up in. The responses he suggested might occur to the civil disobedience I suggested were more in line with what I always called a Police State. I find no comfort in that observation, and after looking at the way the people protesting President Obama’s health care reform have been treated in the Town Hall meetings this summer, I cannot disagree with my publisher’s comments and fears.
After thinking about the section of the chapter that he thought I should delete, it became obvious that removing it would gut the chapter to the point it would have to be either entirely rewritten or removed from the book. I have decided to rewrite and rename this chapter, and in the process I am going to move backwards in my thought pattern. I am going to move through the suggestions of civil disobedience that were made in the lost chapter, to the reasons behind why I made those suggestions. I am going to move to the cause of my irritation with the Adam Walsh Act, and similar laws, and tell you why I believe they need to be disobeyed, repealed and made a permanent part of past history in this nation. I am going to tell you why I believe these oppressive laws are a lesson yet to be learned about the dangers of overreacting to obscure, infrequent and uncommon atrocities by individuals, such as Phillip Garrido and his wife Nancy, or Jeffrey Dahmer.
In preparing to rewrite this chapter, I went to the law library and printed some cases I had either read years ago, or had seen cited as examples in other cases and decisions. I did this just to put myself in the correct frame of mind to make my argument. Please allow me to share some of the history of this great nation with you. Some of the lessons learned that at that time were thought to be “moral truths” are briefly discussed below. In one of those cases I found a perfect quote to convey my thoughts regarding the Adam Walsh Act and similar state laws. In Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, at 1146 (1896), Justice Harlan in his dissent stated:
“In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.” Id.
In Plessy v. Ferguson, a man who was seven-eights Caucasian, and one-eighth African-American, was subjected to a Louisiana law that required him to ride in the train coach reserved for blacks. The train conductor, who asked him to remove himself from the “white” coach, gave him the choice of either riding in the “negro” coach, or being arrested, charged and imprisoned according to Act La. 1890, No. 111, p. 152, LSA-R.S. 45:528 et seq. Mr. Plessy, refusing to follow that law, was arrested, charged, convicted and imprisoned. The United States Supreme Court, applying the relatively new protections of the 14th Amendment, upheld the law as constitutional and the conviction as just.
Dred Scott v. Sandford, 60 U.S. 393, 1856 WL 8721 (1854), referred to in Plessy, is the decision by the United States Supreme Court holding that Dred Scott, a black man, was not one of the “people” or “citizens” referred to in the Constitution of the United States by the framers, because he was, in the words of the Supreme Court, a member of a “subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such
as those who held the power and the Government might choose to grant them.” Id., at 60 U.S., pp. 404-405. The court in Dred Scott v. Sandford, went on to observe:
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as matters of public concern, without doubting for a moment the correctness of this opinion.” Id., at 407.
In Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584 (1927), the United States Supreme Court held that a Virginia state law requiring the sterilization of “feeble-minded” women was constitutional. The law permitted the sterilization of “mental defectives” for the “welfare of society.” This decision was actually used by Adolf Hitler as justification for his “Master Race” plan.
In 1927, the Tennessee Supreme Court held a law forbidding the teaching of evolution was constitutional. Teacher John Thomas Scopes had been charged, tried and convicted of teaching evolution. See, Scopes v. State, 1 Smith (TN) 105, 289 S.W. 363 (1927).
In 1945 the United States Supreme Court upheld as constitutional the internment of Japanese-Americans in concentration camps during World War II. See, Korematsu v. U.S., 323 U.S. 214, 65 S.Ct. 193 (1945).
My point being that just because the legislators and the courts say it is so does not make it right. History is all too clear on that point.
Too many judges are more interested in being re-elected, appointed to higher office, or rendering decisions that comport with the popular opinion of the moment, than they are in deciding the cases before them based on the ideals, principles and common sense needed to reach an equitable solution that encompasses and respects both the rights of the individual and the interests of society. This can be no more evidenced than by the recent battles in the courts of this nation over the constitutionality of the retroactive application of the sex offender registration laws to men and women who committed their sex offense crimes 10, 20, 30 or 40 years ago, and who have been living peacefully as your neighbor since their release from prison. Bear in mind there are presently (as of July 22, 2009), 683,730 registered sex offenders in the United States. (See, “Registered Sex Offenders In The United States,” National Center For Missing & Exploited Children, July 22, 2009, at, http://www.missingkids.com/en_US/documents/sex-offender-map.pdf).
As evidenced by the statistics in the previous chapter, “Why Megan’s Law Are Unconstitutional...,” the vast majority of people who have been convicted of a sex offense do not ever commit another sex offense. In the recent decisions from the courts, a battle has developed between a few lone wolf judges deeply concerned with the intrusion of the government into the lives of its citizens, and judges who believe convicted felons have no right to a private life once they return to society.
In none of the reported cases have I seen the statistics, or legal arguments, presented in “Why Megan’s Laws...” acknowledged by the courts. More importantly, at least in my mind, is the sophistry with which courts are avoiding holding these laws as ex post facto violations, by labeling them as “remedial” or “regulatory” laws to avoid describing them as “punishment.” The circular logic used in these decisions is disturbing because it can not only be applied to persons with prior sex offense convictions, but to any misconduct that is a matter of public record.
“A Rose By Any Other Name….”
This has resulted in registration laws being expanded to include new past offenses across this nation. Colorado now has a registry for persons convicted of meth offenses. Kansas has a registry for anyone convicted of a violent offense. (K.S.A. 22-4902, through 22-4904). Montana now has a registry for violent offenders. California has a registry for known gang members and a separate registry for narcotics offenders. Minnesota has a registry for “predatory offenders” that includes a requirement for anyone convicted of kidnapping or “terroristic threats” register and be placed on the internet. I guess “terroristic threats” is the same as “aggravated menacing” is in Ohio – running off at the mouth. Now that seems like someone I should be warned about...except it would include about all of you, wouldn’t it? Do you see the trend that is developing?
Article I, §9, cl. 3 of the United States Constitution prohibits the enactment by the Congress or Legislators of ex post facto laws. These are laws which, 1.) impose a greater punishment on a defendant than when he was convicted of the underlying offense; 2.) makes a punishment for a crime greater than it was when it was committed, or; 3.) deprives a defendant of a defense available at the time the act was committed. For a criminal penal law to be “ex post facto,” the law must be retroactive and disadvantage the offender affected by such law. A law is “retrospective” or retroactive, as prohibited by the Ex Post Facto Clause, if the law changes the legal consequences of acts completed before the law’s effective date in a manner that makes the punishment for the crime greater, or adds additional punishment for the crime.
The registration laws are retroactive because they are applied to anyone who has ever been convicted of a sex offense (or one of the listed offenses, and there are a ton of them, including prostitution, soliciting prostitution and adultery in some states. See, Kansas Statute 22-4902), regardless of when that offense was committed – even 40 or 50 years ago.
The registration laws are punishment because they require each person required to register to:
Know that they are required to register. This is presumed;
Register within three (3) days after the law went into effect on July 27, 2006, if a current offender, or within three (3) days, after February 28, 2007 when the attorney general issued an “interim rule” making the law retroactive. See, e.g., U.S. v. George, 2009 WL 2591677 at *5 (9th Cir. August 25, 2009);
Personally appear at the local police or sheriff’s department;
Provide the registry with a recent photo to be posted on the Internet;
Provide proper identification;
Provide your current address to be published on the Internet, searchable by zip code;
Provide the name and address of your current employer to be posted on the Internet;
Provide any and all telephone numbers “available” for your use to be posted on the internet;
Provide any e-mail address, on-line identifiers and passwords used by you;
Provide photos of any automobile, truck or vehicle “available” for your use, along with the license plate numbers;
Provide the address of any school, university or college you attend;
Give written notice within 3 days of any change of address of your residence;
Give written notice within 3 days of any change of school, college or university, or of you quitting the school, college or university;
Give written notice to the sheriff of any change of employment, or of you being discharged from your employment;
Give written notice to the sheriff if you intend to move to another state ten days before you move, and give the exact address of where you intend to move to in the other state so that authorities in that state can send out notification flyers to your neighbors before you arrive;
Register in any separate county in the state where you may work or attend school;
Pay a registration fee each time you register or update the information. The amount differs in each State;
In Kansas, at least, all persons required to register are also required to have a drivers license. See, Kansas Statute 22-4904(J).
I used Kansas as an example, which is not really important because all of the above is mandated nationwide by the Adam Walsh Act. Most people must do all the above once every 90 days for life.
It is important to note that no one who committed a sex offense 20, 30 or 40 years ago had to do any of the above. They simply did their time in prison and went on about their business. Did some re-commit sex offenses? Yes. Somewhere around 7% or 8% did. But 92% or 93% did not commit new sex offenses. They, for the most part, have lived quiet productive lives.
There are people like Phillip Garrido and Jeffrey Dahmer in the world just as there are people like Aldolf Hitler and Ted Bundy in this vast population of seven billion humans. But I read in The Urantia Book it is important to always understand that we live in a world where there are black splotches on a white background, not a world where there are white splotches on a black background. I think sometimes we forget that.
In order for the above new “requirements” to be legal, and to not violate the Ex Post Facto Clause, the courts of this nation are holding that they are not “punishment.” They do this by carefully explaining over and over again in many different ways so we “get it,” and in long pages of sophistry, that these “laws” are “regulatory” and “remedial” laws, not “criminal laws.” And that because they are “remedial and regulatory,” (like a drivers license), they are not “punishment.” ...Bullshit.2
If you violate any of the above requirements, by the way, you are subject to a maximum of ten years in state prison, another ten years in federal prison, and if you are lucky enough to live in California, or another “3-Strikes” (or “2-Strike” State like Georgia), you will be sentenced to life in prison. And by the way, have a nice day.
But, this isn’t “punishment.” And it is not “double jeopardy,” because you are being convicted and punished for failing to register as a sex offender/violent offender/predatory offender/narcotics offender/gang member, etc., etc., etc.. Your initial conviction, while necessary to obtain your failure to register conviction, is separate and totally divorced from your failure to register conviction. Again, Bullshit.
Based on this logic, I have some proposed laws. My mother is older now and I want her protected from wife beaters. I want a registry of everyone who has ever had his wife call the police on him for hitting her, or even threatening her. I want him subjected to all the restrictions above so my mother will not talk to him at the store.
I also want her protected from bad doctors. Any doctor who has ever had a malpractice suit filed against him, I want to be notified about it and have him placed on a registry.
While we are at it, I also want every doctor and dentist who is operating on a restricted license to be on a registry. Many of the doctors and nurses who work in prisons are working on restricted licenses because of malpractice or complaints of sexual misconduct with patients. I want to be warned about them. Put them on a registry.
The same goes for lawyers. Any lawyer who has ever had a complaint filed against him with the State Disciplinary Council should be on a website and the complaints open for public viewing. If he is going to be handling my estate I want to make sure he is not going to steal from my children.
And teachers. Any teacher who has ever had a drunk driving conviction or received a citation for public intoxication, I want them listed on a public registry on the internet--even if it happened at spring break 30 years ago. While we are at it, lets just expand that to include everyone who has ever been arrested for public
“A Rose By Any Other Name….”
intoxication or drunk driving. I don’t want them living in my neighborhood racing down my street running over my children.
I want another registry for anyone who has ever been accused of adultery in a divorce proceeding. Divorce proceedings are generally a matter of public record. We can just collect them, place them on the internet and require those people to register. I don’t want my wife working with any man who has ever been accused of adultery by his wife, or my kids around him. You can never tell what he will do if he has no more control over his sexual urges than that.
Is anybody getting my point yet? This path never ends once you start on it. It has to stop here, and some reasonable limitations imposed on intrusion into our privacy, or every time you ever made any mistake in your life is subject to public ridicule and exposure.
To require, years later, anyone who committed any crime to go through the registration process described above, to place them on the Internet where anyone can harass them, to send their neighbors community notification flyers describing what they were accused of in detail written from only one perspective--that of the accuser, is “punishment.” To cause people to be run out of their homes and neighborhoods where, in some instances they have lived quietly for years, is “punishment.” To subject people, years later, to being ostracized by their neighbors is “punishment.” To call it “remedial” or “regulatory” is Bullshit.
The Amish community would recognize this instantly. They call it “Shunning.” It was also once called “The Scarlet Letter.” It might as well be called the Mark of Cain.
A rose by any other name is still a rose, and the courts of this nation who are holding this is not “punishment,” but merely “regulatory” or “remedial,” lack the same integrity and backbone the judges involved in the Dred Scott Case, Plessy v. Ferguson, State v. Scopes and the Japanese internment cases lacked. They are simply intellectually dishonest and undeserving of the trust society has placed in them.
For some of the most recent decisions that should be universally condemned by history, see, U.S. v. Whaley, 577 F.3d 254 (5th Cir. 2009); U.S. v. James, 2009 WL 1955773 (8th Cir. 2009); U.S. v. Powers, 562 F.3d 1342 (11th Cir. 2009)(reversing an excellent decision by Judge Gregory A. Presnell, U.S. Dist. Ct. Middle District of FL, dismissing an indictment in U.S. v. Powers, 544 F.Supp.2d 1331, and finding the Adam Walsh Act unconstitutional), and U.S. v. Tom, 565 F.3d 497 (8th Cir. 2009) (upholding the civil commitment portion of the Adam Walsh Act).
U.S. v. Gould, 568 F.3d 459 (4th Cir. 2009), is another bad decision. But it contains an excellent dissent by Circuit Judge Michael, asserting the Attorney General exceeded his rulemaking authority under the Administrative Procedures Act by making the Adams Walsh Act retroactive in the manner he did--i.e., in violation of the APA. Id. at 475 to end.
For those wanting to fight these laws, a few victories have developed. Doe v. Shurtleff, 2008 WL 4427594 (D.Utah, 9/25/2008) and Doe v. Prosecutor, Marion County, Indiana, 566 F.Supp.2d 862 (S.D. Ind. 2008), both hold that the requirements that a person required to register must reveal their on-line e-mail addresses, identifiers and passwords is unconstitutional and violates the right to anonymous on-line freedom of speech and the First Amendment.
Contrary to the holding by the Eighth Circuit Court of Appeals in U.S. v. Tom, supra., the United States Court of Appeals for the Fourth Circuit has held that the civil commitment portion of the Adams Walsh Act violates the “Necessary and Proper Clause” and the “Commerce Clause” of the United States Constitution. See, United States v. Comstock, 551 F.3d 274 (4th Cir. 2009).
Regardless, none of the above cases challenge the Adam Walsh Act as being an arbitrary law, or base their challenges on the statistics showing the registration laws are so attenuated from the goal as to be capricious. The majority of judges seem to be afraid to stand up and declare these laws the farce they simply are in relation to the purpose they are supposed to accomplish.
Look no further than Phillip Garrido. Did Garrido being a “registered sex offender” prevent him from kidnapping, repeatedly raping, and imprisoning a girl for 18 years? How did the fact that he was “registered” protect her? How did the public’s knowledge of his past do anymore than cause him to pull his head in and hide what he was doing all the more thoroughly? And Garrido doesn’t just fit the minority category of being a “stranger” offender, since he is a “class of one” in many different aspects. That type of sex offender cannot be protected against by broad-brush laws designed to sweep both the drunk nudist and the serial rapist into its clutches. When the law is too broad it protects so much that it protects nothing.
And how does a mother protect her child from the fact that over 90% of all sex offenses are committed by relatives, family members, close friends and acquaintances--not strangers?? More pointedly, consider that with the low rate of recidivism as statistically proven, it follows the vast majority of sex offenses are committed by first time offenders--people who have never before been caught or imprisoned for a sex offense. The registration laws cannot, and do not, warn anyone of the vast majority of the persons who actually commit sex offenses in this nation. They are not only an exercise in futility, but so distanced from what they exist to prevent as to lack a usefulness great enough to justify their existence as a means of invading the privacy of the citizens subject to them.
It’s kind of like closing the barn door after the horse has escaped.
I do not dispute that some sex offenders need to be monitored if released into society. In particular, those convicted of more than one sex offense should be subject to the types of monitoring set forth in the Adam Walsh Act. Except, in my opinion, that monitoring should be performed by police, parole and probation officers – not neighbors and the public. I do not believe public ostracizing or shunning does anything more than drive the person deeper underground and invite an attitude that it does not matter what they do because they will never be allowed to live a normal life anyway.
Under the present laws the broad brush has already done its damage. It is my suggestion that leaving the United States is probably a good idea.
While passport laws do not technically prevent an ex-felon from obtaining a passport, I read a case sometime last year where an ex-felon had been waiting over five years for the passport to be issued. They had allowed and accepted his application for passport, but the State Department had simply let it lie without verification or validation. If that happens to you, I would suggest approaching other countries embassies and asking if they would consider issuing you a passport for the purpose of leaving the United States.
They had a similar problem in Europe once. I think they called it the Berlin Wall. Sex offender registration laws cannot be allowed to build a Berlin Wall around the United States. One man was recently arrested for failing to register after returning from vacation in Mexico. The charges were eventually dropped for, as described by the court, “failure of proof issues,” but the man sat in jail while that happened. The arrest was based on him not being at his last known address while he was in Mexico. Unfortunately, for the authorities, a person cannot be required to register in another country that has no registration laws.
If a person feels strongly enough about the treatment they receive as a registered sex offender, be aware we are at war. Citizens of the United States have a statutory right to renounce their citizenship during time of war, as long as they can prove they intend to leave the United States “within a reasonable period of time.” See, Kaufman v. Mukasey, 524 F.3d 1334 (D.C. Cir. 2008).
“A Rose By Any Other Name….”
Readers should note that extradition treaties with other nations require that whatever crime the demanding nation wants the individual for must also be a crime in both nations before extradition is required to be made. This requirement comes from the days when the Soviet Union had crimes such as “Hooliganism” on its books, and the United States did not want to be forced to extradite Soviet citizens who had managed to escape from the Soviet Union unless absolutely required to do so. The U.S. had provisions written into all extradition treaties that required the crime the person was wanted for be a “crime” in both nations – thus excluding “political” crimes from being extraditable offenses.
It is ironic, and probably poetic justice, that these same provisions can now be used to prevent extradition back to the United States for anyone who manages to escape to avoid the Adam Walsh Act. The United States, Great Britain, France, Canada, and I believe either Austria or Australia, are the only nations that have enacted sex offender registration laws. In all other nations, as of this date, being wanted by the U.S. for failure to register would not be an extraditable offense. See, generally, Title 18 U.S.C. §3181 for the list of nations with which the U.S. has extradition treaties, and by comparison with the roster of nations at the United Nations, those nations the U.S. does not have extradition treaties with at this time.
Consider as a last resort, if you can no longer find peace here, that it may be time to leave. For older persons remember your Social Security or disabled veterans check goes a long ways in Mexico or the Philippines, and the U.S. Government will direct deposit your check in the local bank wherever you are.
The judges of this nation need to face the truth and admit what anyone else can tell them after spending a few minutes looking at what is both required of persons subjected to these laws, and what are the common sense consequences of these laws on a person in everyday life. These laws are punishment. Any idiot can see that. They can call it “remedial” or anything else, but a Rose by any other name is still a Rose.
And if it is punishment, then to apply it retroactively to citizens whose convictions and punishment were over before these laws were enacted violates Article I, §9, cl. 3 of the United States Constitution – the Ex Post Facto Clause.
I don’t see why that is so hard to understand.
Until next time, this is Jim Love reporting From the Front Line.
Shakespeare, William. Romeo and Juliet (II, ii, 1-2)
On October 9, 2009, Ohio’s 11th District Court of Appeals held Ohio’s Sex Offender Registration Law, enacted to comply with the federal Adam Walsh Act, violated the Ex Post Facto Clause of the Ohio and the U.S. Constitutions because it constitutes “punishment” or a “punitive” statute. See, State v. Strickland or, 2009 WL 3255305 (Ohio 11th Dist. 2009). A stay of that decision was granted by the Ohio Supreme Court on October 20, 2009. See, State v. Strickland, 2009-Ohio-5522 (Ohio 2009).
Interestingly, the 11th District’s holdings were based on dissenting opinions in several Ohio Supreme Court cases where the justices collectively expressed strong reservations regarding holdings that the retroactive application of the Adam Walsh Act was not “punishment.” (J.L. 10/31/09)