|A man that I helped was released from prison by order of
the governor in 1996. This was after I proved in court 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 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, a manila envelope with no return
address appeared in this man's mail at his prison which had the NCIC teletypes
between the prosecutor and the San Diego County Jail wherein the prosecutor
arranged for the witness to be held during the trial. Upon 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 6th 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 6 years had passed since the civil rights violation had occurred. In other words, because it took us 6 years to find the evidence and argue the case in the State courts, the prosecutor got away with it.
At this point, I should clear up another misconception the public has. Prisoner's have strict time limits for filing and appeals that are at a maximum 45 days. So, when you hear about a prisoner's conviction challenged 10, 12, or 15 years after the conviction, understand that the prisoner himself is only responsible for the few months of that delay that 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.
In another case that I started, a man was accused of a double murder. It was a death penalty case which eventually resulted n a sentence of 70 years to life for him. 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 him 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 11:15AM. 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 on 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 records showed the man had left the bank around 10:15AM 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 the call had been made at 11:32 AM, 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.
In another case, the one involving the sister mentioned before, a man I have now known for several years was accused of sexually molesting his stepdaughter. In the middle of the trial the judge, upon complaint of 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 been found to have been false. The trial court judge refused to allow the defense to cross-exam the stepdaughter on these previous false reports of rape. The jury never heard this girl had made numerous similar rape reports against numerous other men. My friend was convicted and sentenced to five life sentences. He is presently 65 years old, and has been fighting the case since 1989. The federal court of appeals held his claims of the withholding of exculpatory evidence as procedurally defaulted and denied him a new trial.
In another case a man I just met, who is the cousin of a friend, was accused of a murder. Since the trial an affidavit has been obtained from a J.C. Penny's salesperson who attests at the time the murder was to have occurred the man was at J.C. Penny's at least 15 minutes from the place the murder occurred. This new affidavit was presented on Motion for New Trial. An evidentiary hearing was denied and the evidence refused admission into the record. The man is serving 30 to life.
In another case a man's brother has confessed to the robbery he is convicted of and for which he is serving a sentence of 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. 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" my attorney, who accepted this case pro bono at my urging, was that the court of appeals will affirm the dismissal of the case.
In another case that I am working on, a man who 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 release from parole, the State had no jurisdiction over him. He is incarcerated without any jurisdiction lying in any court of law. We received an extremely anti-prisoner federal judge assigned to his Petition for 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 to be incarcerated on an expired sentence is an ongoing constitutional violation that renews itself everyday, 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.
©2002-2004 James Love. All Rights Reserved.
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