Of Human Nature, Or, Meet Judge Slick Willy
|I want to tell you a few stories about men and women I
have met while I have been in prison. These 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 them,
day after day, week after week, year after year. I've typed their
court papers. I've walked the track on the prison yard with them.
Some of them I've had Christmas dinner with. 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 left out of the $17.00 a month to pay for it them self, and
their time deadline was up. 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 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 to hear
their cases have done. Now I want to tell you about them, and what
is being done to them.
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 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 anyone that 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 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 labelled 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, 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. The Clerks of the Courts will first slow walk you, while they call the prosecutor and 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 cases I am going to describe below, it will get much more difficult for you to obtain the records. Difficult and expensive. Costs of 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 a friend of mine's daughter 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 burnt up between the prosecutor 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 celly here for 1 1/2 years. He was accused, charged, tried and convicted of the murder of his best friend of 25 years, and his best friend's brother, whom Danny had known for over 20 years. Both men were shot and killed on October 31st, 1997 while deer hunting in Cadiz, Ohio.
When Danny drove down from Akron, Ohio, where he lives, to the Sheriff's Office in Cadiz, Ohio, on November 5th, 1997, at the request of the Sheriff, he 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, in Akron. He named off a list of stores he had visited that afternoon in Akron. The coroner testified the two men had been killed "between 3:00PM and 7:00PM," on October 31st.
Understand that Akron, Ohio is 75 miles from Cadiz, Ohio, and on the afternoon of October 31st, 1997, there was heavy construction work being done on the interstate in Canton, Ohio, between Akron and Cadiz, which slowed the driving time to between 2 and 2 1/2 hours.
Danny was at Lucasville at the same time I was, but in a different cell block. 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 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 5th, gave a list of stores he visited in Akron the afternoon of October 31st to BCI 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 went to a liquor store, a fruit basket store, a gas station, a dry cleaners 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 7:30PM, 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 these attorneys who believes her diploma form law school gives her a monopoly on knowledge and who vehemently advises her clients to stay away from all jailhouse lawyers, then refuses to meaningfully communicate with her clients. She is also one of these attorneys who insists on being assigned to the appeal of the trial where she is 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 out 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 lost, ten aggravated murder cases while screwing then up on appeal so bad they could not be salvaged. She is from Stubenville, Ohio. Worse yet, we just found out she is Danny's trial court judges' attorney of record. She just defended him in misconduct charges that resulted in Danny's judge, Judge Steven Karto of Harrison County, Ohio, being removed from the bench and suspended from the practice of law for six months. He was listed in the yearly article, "Worst Judges In The U.S.," published by the National Law Journal, and appeared in Playboy's forum on the same subject in August or September of 2002. He was suspended for doing things like taking his robe off, getting down from the bench, giving closing arguments to the jury for the prosecution, or testifying for the prosecution as a witness, and then putting his robe back on, getting back up on the bench, and finding the defendant guilty and sentencing him to the maximum possible sentence.
Danny faced murder charges in a trial ran by these idiots.At trial an Agent Kopfer of BCI testified he reviewed the surveillance video tapes (the reference was always in the plural), and 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 went 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 anymore 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 video tapes 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 video tapes 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 photo that Agent Kopfer had, the drivers license and the mug shot, showed Danny wearing a ball cap. Couple that with the general poor quality of videos from store surveillance cameras, as you see on TV all the time, and I ask what real opportunity Agent Kopfer had to identify Danny on any of the videos taken by the cameras at the various stores?
At Danny's insistence, trial counsel, acting as his appeal counsel, raised the error the prosecution withheld evidence that would prove Danny is innocent by failing to give his defense attorney the video tapes from the various stores in Akron. This is called a Brady violation after the decision of the U.S. Supreme Court in Brady v. Maryland. The decision requires all 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 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 these video tapes prior to the trial, that Danny had waived the error. Bear in mind this is ineffective assistance of trial counsel, but since trial counsel was also appointed as the appeal counsel, she did not raise the error of her own ineffective assistance under the holdings of Kimmelmann v. Morrison, 477 U.S. 365 (1986) (failure of trial counsel to perform an adequate pretrial investigation constitutes ineffective assistance of counsel). In fact, an attorney is deemed incompetent to identify and raise their own ineffective assistance. If they didn't know it was error in the first place, how could they identify it as error and raise it as error on appeal? That is why it is an universally condemned practice to appoint trial counsel as the counsel on appeal. 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 which 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 cleaners in Akron. She testified Danny Jenkins dropped off his laundry at the dry cleaners in Akron, "between 3:00PM and 6:00PM" on October 31st. 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 8:30PM), 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 5th.
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 the same time testified to as the time of death by Dr. Platt. I claimed this evidence was sufficient for Discovery of the video tapes to be granted by the federal court under the requirements of Habeas Rule 6. I stated that proof Danny was at the dry cleaners that day, during the afternoon, leads to the reasonable probability he was also at the other stores in Akron that same afternoon --establishing an iron-clad 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 what 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 video tapes which 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 v. Maryland.
The District Court Judge, Judge Smith, denied the Objections with a slick willy move. He also quoted Cheryl Honeycut's testimony, but in the middle of his quotation of the testimony at page 450 of the trial record, appears three "***" signs designating he had "left out" part of the testimony. Those three "***" take the place of six lines of testimony given by Cheryl Honeycut --the very six lines showing Danny dropped off his laundry between 3:00PM and 6:00PM on October 31st. The way Judge Smith edited the testimony, it appears to say Danny dropped off his laundry at 8:30PM instead of what the testimony actually says. Remember, the prosecutor jumped from subject (when it was dropped off), to 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, bring out that the laundry had been dropped off between 3:00PM and 6:00PM. She did not point out to the jury how the prosecutions 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, did not require further development of the facts by way of an examination of the video tapes, and Dismissed Danny's Petition For a Writ of Habeas Corpus.
A report in USA Today last week (I think it was USA Today --I read a lot), 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 to simply assume he has done his job correctly, and quoted the transcripts truthfully, and not have the time to become 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, for any of you who have read some of my other articles.
I spent 1 1/2 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 him 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, or 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 kill 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 31st, and who was never called at the trial, or talked to by Danny's trial counsel. He refused to talk to her. Apparently, after we started raising hell in federal count, he received calls from the Sheriff and prosecutor in Harrison County advising him not to talk to anyone about what he knows --that Danny was in the liquor store that afternoon, and that the BCI Agents did seize the surveillance camera tapes.
Tapes Danny has been refused access to.Judge Smith held that since Danny could not prove the video tapes 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 he used to refuse Danny's request to see the video tapes, and 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 video tapes, but cannot see or use the video tapes 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.
Will the judge and the courts get away with this? I see them get away with it all the time. They count on human nature preventing then from being caught in a public manner at it. Lots of people will read the judges 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? Jenkins v. Huffman, pending on Notice of Appeal in the United States Court of Appeals for the Sixth Circuit as of this date, November 29th, 2002. I challenge you. Prove I'm wrong.
Allow me to clarify something else for you. Federal Courts of Appeals work in units of three judge panels. Yet the average number of cases decided is 692 per judge, per year. That means in order to average 692 cases per judge, per year, three-judge panels must decide 2076 cases per year, or, based on a 280 day working year, 7.41 cases per day. With criminal cases, where a "de novo" review is required by law, can I ask who is capable of reading the thousands of pages of transcripts and documents needed reviewed to determine the issues de novo (meaning as thought no other court had ever reviewed or decided the issue)? Do you think we are being lied to? Do you know anyone who can read eight or ten thousand pages of legal documents a day, everyday, and issue an opinion that is worth the paper it is written on on all of the decisions so issued?? I don't, and I read around 700 wpm.
"Houston, we have a problem."
James Love. All Rights Reserved.
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