03/22/03
The appearance of justice is more important than justice itself.

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 that manner.  If I can change the laws of ths 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 life incarceration because the "powers that be" are so arrogant as to refuse to even accept the possibility of wrongful convictions.

The problem is a "dog chasing its tail" problem, or in legal circles, what is known 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 independentcommissions which are empowered to hear and act upon new evidence presented by convicted felons, which the felon claims is proof of his or her innocence, is base on 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 has not been undermined in most peoples minds by the prisoners released over the past few years by DNA evidence because those cases are portrayed as each 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 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 down-played 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 the man released comments that "there are other innocent men still there."  A comment that I have noticed is never given any credence or expounded upon by the press or the government officials interviewed about the release.

If it is not acknowledged or recognized that other innocent people are in prison, and that lack of acceptance of the problem is the factual assumption used to discredit the need for court forums or commissions where prisoners are allowed to prove their innocence, then that factual assumption itself becomes a self-fulfilling prophecy.  The circular logic that follows goes something like this.

There are no innocent people in prison, 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 commission 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 regulary established court process.  The hearings they were granted that resulted in their release is not something that is in the law books or in court rules that any prisoner can take advantage of 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, and the courts were 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 United States Supreme Court Justice said something that is seldom ever said in public.  I just read it within the past two weeks in something I was reading, but I was researching some issue for someone and passed it on 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 it was either Justice Holmes, or Justice Holmes quoting another Justice who said:

"The appearance of justice is more important than justice itself."

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 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." Id., at 457-58.

What United States Supreme Court Justice Antonio 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 Appeal examines the facts of a conviction, and every other court to review the case presumes those findings of fact are correct.  The later courts only review the application of established law to those presumed facts.

This excludes any facts found or discovered after the trial from any higher court's review, 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 lying, or even admitting to an honest mistake, in their testimony at the trial, or newly discovered evidence raising a question of the validity of the finding of guilt by the jury.

Why?  As prisoners progress through their appeals, the "funnel" grows more and more narrow, and the "flow" of cases increases.  A State Supreme Court, typically with seven to nine judtges, 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 prisoners lawsuit or Habeas Corpus action.  A federal Court of Appeals is presented with, for example in the Sixth Circuit, every appeal from every federal prosecution 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.

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.  Districts Court, 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 has 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 to hold the Office for life.  The appointment for life 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 on the question of whether or not a citizen's liberty has been rightly taken from them?  In my opinon, yes it should.

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 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 quilt is quoted by the court, evidence indicating the evidence of quilt 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 the case is referred to tells him in the Report and Recommendation issued, or what his law clerk brings to him 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.

Now, I'm not stupid.  I know when I'm being lied to, as I have proven, through the shear limits of humanity, above.  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 my claims 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 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.

So, what about courts that do not have enough judges to meaningfully decide 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 overhauled.  It is not merely the number of vacancies on the courts because even if every available position for judges was 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 only to 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 paper work that floods his chambers everyday.

This is nothing but politics and the inability of our elected leaders to recognize 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.  Two a week, 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 Judged 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 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?

I ride "conservatives" a lot in my articles.  Why?  Because they seem to be the ones who most ridicule prisoners claims of injustice and unfairness, or the first to turn their back when an imprisoned citizen claims innocence.  It is from them I hear the statments 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 affect on the people served by the bureaucracy during the upheaval.  As long as an idea is "inside the box" it is acceptalbe.  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 Rumsfield'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 creatgion of enough judgeships and courts to that citizens accused of crimes feel they have at least been given a full and fair review of their cases as they are entitled to by law?

Is the 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 (million) Americans, that "every reasonable juror is almost certain to  vote to acquit."  Id., at 783.  The majority of the en banc court of nine 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 Merritt).

Faced with DNA evidence proving Mr. House had not committed the rape that was to have occurred with the murder, and two extra-judicial confessions of the victims' ex-husband to two separate people that he was the one who had killed his ex-wife, Judge Boggs voted to execute Mr. 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 this type of "mainstream conservative" thinking of judges just like Judge Boggs and Judge Batchelder, that I have ran across in the past 13 years.  I forget her name, but the female judge from the Texas Court of Appeals that President Bush nominated, and Senator Hatch praised, issued a decision almost identical to the above dissent's reasoning in a DNA case in Texas last year.  This female judge was confirmed by the Republican majority in the Senate and now sits on the United States Court of Appeals for the Fifth Circuit.

So tell me, how many of you, if falsely accused of murder with new DNA evidence proving you were innocent, would want her on your three-judge panel in your Habeas Coupus?  (Oh,by the way, the man in her case was executed).

All the judges nominated by President George W. Bush, which the Democrats are fillibustering, and the Republicans are whinning about, think like Judge Boggs and the female judge described above.

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 execution) 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 anymore who was guilty and who was innocent.  What else could he do?  Kill them all and let God sort them out??

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.

On 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 stolen out of the mess tent.  One of the men, Nelson, was the kind of guy that 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 Battalion 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 am the only man at that poker game who was still alive that next afternoon.  It could just as easily have been me that didn't come back.

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 Ripchord, between Ripchord and Camp Evens, 101st Headquarters.  That day Ripchord was overrun in broad daylight.  We lost somewhere around 167 men, 16 helicopters and abandoned all the artillery.  We were rocketed at Camp Evans, and the mess hall caught a 122mm rocket dead center.  The corrugaged tin roof looked like someone had taken a high powered BB gun and sprayed it.  B-52's were called in from Guam.  When we returned to Ripchord a few months later, we had to remap the terrain.  The mountain Ripchord had sat on was gone.*

In November 1970, I sat in the dead-mans hole between two bunkers at Phu Bai, at 3:00AM.  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 don't seem to think an innocent man's papers are worth their time to read, or a justice system that just wants to look like 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.
 

*Casualty figures for the July 23rd, 1970 retreat from Firebase Ripchord reported in history books show 61 members of the 101st Airborne killed, and 345 wounded during a three week attack against Firebase Ripchord.  The above information was what I was told by other men and officers after our combat assault.  I was not personally at Ripchord.  We did capture three suspected NVA scouts on our sweep.  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 are correct, or what I heard from first-hand accounts, I don't know.