 |
THE UNDERMINING
OF THE CONSTITUTION AND AMERICAN IDEALS:
03/16/2004
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| A discussion of how attorneys (Judges, Prosecutors
and Defense Lawyers), protect their professional careers, assets and advancement
into politics by concealing unfair conduct in trials and wrongful convictions;
delaying the release of wrongfully convicted citizens; refusing to admit
when they are wrong, and changing unconstitutional actions into artificially
legal actions by applying a progressively greater standard for finding
error at each higher level of the court system.
I. Checks and Balances. The Founding Fathers established three branches of our Government; the Executive Branch, consisting of the President, Governors, U.S. Attorney General, FBI, State Attorney Generals, State Prosecutor's and police; the Legislative Branch, consisting of the U.S. Senate, House of Representatives, State Senates, State Houses of Representatives and City Councils; and the Judicial Branch, consisting of the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts, State Supreme Courts, State Courts of Appeals and local County Courts, as those institutions have evolved today, discounting Federalism and the separate sovereign status given the States. That system of Federalism gives rise to a separate problem in our justice system under the policies of "comity" which are discussed more fully in my essay, "Civics: An Advanced Course Taught Only In Prison." The purpose of the Executive Branch, for purposes of this treatise, is to provide the muscle to enforce the laws enacted by the Legislative Branch necessary to an ordered society. Almost unique in the history of the world, our Constitution provided for the Judicial Branch to be totally independent from either the Executive or Legislative branches of our government, and placed upon that independent judiciary the solemn duty of ensuring the laws passed by the Legislature, and the methods used to enforce those laws by the Executive Branch, did not contravene the basic rights of the people of our nation set forth in the Bill of Rights. Further, with an uncommon foresight, our Founding Fathers enacted provisions allowing our Constitution to be Amended so as to evolve with changing times, technology and the evolution of social values. This Amendment procedure was made extremely difficult, requiring the consent of two-thirds of both the House and Senate, and Ratification by three-quarters of the States, to ensure the grave action of changing or adding to the cornerstone principles governing our society was not lost on those desiring the change, or taken in the heat of the moment generated by some contemporary historical event affecting national pride or emotion. The process was designed in such a manner as to require years to complete, allowing wisdom to replace outrage or passion, and discussion to replace rhetoric and political posturing. No greater document has ever been penned by the hand of man in the history of the human race than the Constitution of the United States. Yet it is not flawless, as my discussion of the effects of Federalism in producing the Doctrine of Comity, and that doctrines' effects of circumventing the rights of the individual citizen by allowing unconstitutional actions of the sovereign States to go uncorrected by Federal Courts, in "Civics: An Advanced Course..." shows all too well. a.) Common Law vs. Codified Law. Unfortunately, the barriers the Doctrine of Comity raise to the protection of the Constitutional rights of citizens by the Federal Judiciary, is not the only way the Legislative and Executive Branches of our government have found to constrain the Federal Judiciary from acting in defense of a citizen who has been unconstitutionally searched; arrested; tried; convicted or sentenced in violation of the spirit behind the Bill of Rights. At the time of the writing of the Constitution, English Common Law governed the Colonies. English Common Law had evolved over 500 hundred years, since the signing of the Magna Charta in 1216 A.D., under pressures generated by the right to a Writ of Habeas Corpus where imprisonment was found to have been obtained arbitrarily, based on political maneuvers, without authority of law, or by use of questionable procedures. From the Writs of Habeas Corpus granted to King's subjects over those 500 years, and the proceedings and rulings thereon, came the evolving concept of "due process of law," jealously preserved in the Fourth, Fifth and Sixth Amendments in the Bill of Rights. Due process, at that time, was understood to mean equitable treatment of both parties before a court. It was what was "fair" to both sides, not just in the manner the court conducted the proceedings and allowed each side to prove its case, but in the outcome of the proceedings as leading to a just result. There are two types of "due process" in our courts today. One is the "Procedural Due Process" which encompasses such things as the Rules of Court and the Rules of Evidence. The other is "Substantive Due Process" which encompasses the outcome of the proceedings leading to a just result and having been obtained in a fair manner.. for instance, not allowing the government prosecutor to hold a shotgun on the jury and force them to sign the verdict form in the section finding guilt, to give an extreme example. As explained more in detail in my articles, "Once You Are Accused," and "Civics: An Advanced Course...," the courts of today are so caught up in the strict enforcement of Procedural Due Process, in the form of Codified Law, that they have lost sight of simple right and wrong as is embodied in the Substantive Due Process rights actually in the minds of the people who wrote our Constitution at the time it was written. Or, as Winston Churchill stated, our Courts have forgotten that: "Rules are made for the obedience of fools and the guidance of wise men." A perfect example of the conflict with Common Law substantive due process, and the fairness embodied in that fundamental principle, is the case of Jonathan C. Shaw and Mango Watts of California as decided by the United States Court of Appeals for the Ninth Circuit, filed on December 22nd, 2003, and published and reported in 353 Federal Reporter 3rd Edition at pages 697-711. Mr. Shaw and Mr. Watts were arrested, charged, tried, convicted and
sentenced on multiple counts of assault, robbery and attempted robbery
in connection with an armed robbery of a Lyon's restaurant in September
1995. Mr. Watts
The testimony and facts of the robbery were that only one of the robbers had a gun, and that only one of the two robbers had "personally used" a gun during the robbery. This is important because in California there is a "Sentencing Enhancement" which greatly increases the sentence of any person found to have "personally used" a firearm during the commission of a felony. Yet despite the fact that all of the victims testified there was only one gun, and that only one of the robbers used the gun, the State prosecutor charged both Mr. Shaw and Mr. Watts with the "personal use" of a firearm. I must regress for a moment in my analysis of these two convictions to point out something commonly known by defense lawyers, but not general public knowledge. Prosecutors, if they have multiple separate offenses, or multiple defendants, prefer to proceed in a joint trial. This preference stems from the tendency of juries presented with multiple offenses, to find guilt as to at least one offense, increasing the chance of obtaining a conviction. In multiple defendant cases, a "birds of a feather" strategy is used through admitting into evidence either prior convictions or unacceptable social status and life styles of the various defendants, and "painting" the other defendants with the same brush, again resulting in a higher conviction rate. The legal justification used is called "judicial economy." Yet as will be seen from Mr. Shaw's and Mr. Watts' cases, the "judicial economy" pretext is rapidly abandoned when the prosecution desires to increase the sentence of, in this case, two defendants. Proceeding in two separate trials, separated by two years, the prosecutor argued that Mr. Shaw and Mr. Watts each was the one person during this robbery who "personally used" the gun, and obtained separate convictions on the sentencing enhancement for each defendant, causing each of their sentences to be increased by a minimum of three to five years. The decision does not indicate how long Mr. Shaw’s and Mr. Watts' sentences were enhanced, but California Penal Code § 12022(c) mandates a minimum of three, and a maximum of five, years added consecutively to any sentence where the defendant was found to have "personally used" a firearm. Mr. Shaw, upon learning of Mr. Watts' conviction for the "personal use" of a firearm also, filed a State Writ of Habeas Corpus asserting a violation of his rights to due process and a claim of actual innocence. The California courts denied his petition. A year later the case, now on Federal Petition for a Writ of Habeas Corpus, came before the United States Court of Appeals for the Ninth Circuit, only one level below the United States Supreme Court. The Court affirmed the denial of Mr. Shaw's Writ. The reasons given for the denial are a perfect example of what happens when codified law conflicts with "the fundamental conceptions of justice which lie at the base of our civil and political institutions," Hebert v. Louisiana, 47 Supreme Court Reporter, 103 (1926), and results in a violation of the concepts underlying ordered liberty inherent in substantive due process, which was the cornerstone of English Common Law Habeas Corpus jurisprudence, from which the Fifth Amendments' Due Process Clause was derived and understood by the writers of the Constitution. While the right to a Writ of Habeas Corpus was secured to U.S. citizens in Article I, §9, cl. 2 of the Constitution, Congress, in 1996 amended 28 U.S.C. §2254, the Habeas Corpus statute, to include a provision prohibiting the granting of a Writ of Habeas Corpus by a State prisoner unless the "adjudication on the merits," issued by the State Courts was "clearly contrary to...or an unreasonable application of….federal law as decided by the U.S. Supreme Court." The Ninth Circuit held that because the U.S. Supreme Court had never held that it violated due process for a prosecutor to obtain separate convictions, at separate trials, of two separate defendants for one criminal act that Mr. Shaw was not entitled to Habeas relief. The Court denied Mr. Shaw's writ while also stating: "There is little doubt that the actions
of the prosecutors in the case before us may be characterized as something
Judge Wallace filed a scathing six page dissent to the five page opinion of the Court, wherein he concludes: "I cannot support an outcome that assumes a constitutional violation of either Watts's or Shaw's rights, but concludes there is no remedy." Id. at 711. There is no "remedy at law," in this case simply because Congress has chosen to trump Common Law substantive due process rights embodied in the Constitution, which have evolved for the past 800 years, with Codified laws that circumvent what is right and fair, i.e., what is "Just." The outcome of this case is not unique. It is but one example of thousands of cases that have been decided in a similar manner over the past seven years since Senators Orrin Hatch and Trent Lott pushed the 1996 Anti-Terrorism and Effective Death Penalty Act through Congress after the Oklahoma bombing of the Federal Building. More importantly, as discussed in the next section of this essay, the adoption of Codified laws by both the States and the Federal Government, while at the same time specifically abrogating Common Law from our system of justice, is interfering with the independence of the Judiciary established in the Constitution which makes our system of government unique in the history of the world. It threatens our very existence as a free people by removing the power of the Judiciary to protect the people from government over-reaching of the type expressly evidenced in Shaw v. Terhune, supra.. b.) How the Independence of the Judiciary Has Been Undermined. Over the past forty years the Judiciary has come under repeated and
sustained attack, for in essence, doing their job. The first attacks came
in the 1960's and 1970's in the form of public outrage resulting from reversals
of criminal convictions based on "technical" errors. At that time, some
of that concern was justified. In response, the United States Supreme Court
decided a case named Chapman v. California, 386 U.S. 18 (1967) which instructed
the courts
Unfortunately, because the public is generally uneducated in regards to what is a "technical" error, and what is a procedure established by history as necessary for a trial to be fair, many long established trial practices were able to be portrayed to the public as "technical" requirements by prosecutors who wanted more leeway in presenting their cases to juries. Many judges, because they had started their careers as prosecutors and remembered how these long evolved practices, such as preventing a jury from knowing a defendant had a past criminal history, sometimes interfered with their ability to obtain convictions of people they were convinced were "bad," in cases where there was little evidence of guilt, and the Judicial Canons of Conduct also limited their ability to express opinions on these changes, kept silent on the issues raised. Over time, practices which had been found as too prejudicial to the defendants right to a fair trial during the evolution of English Common Law, began to reappear in our trials, and reversals for those errors were denied by judges afraid to be labeled as soft on crime by prosecutors who had no ethical restrictions, or Canons of Conduct, placed on them which prevented them from holding press conferences and appealing to a legally unsophisticated public to support these changes. One example of this was the enactment of State Court Rules, similar to Federal Rules of Evidence 412-415, allowing the introduction of a prior conviction for a sex offense in sex offense prosecutions. The stated reasons for the enactment of these rules is that "sex offenders have a high rate of recidivism and are more likely to commit another sex offense than defendants who commit other types of crimes." Once a jury sitting in judgment of a person accused of a sex offense is told the defendant was convicted of another sex offense sometime in the past, a verdict of guilty is almost assured, even in classic "my word against her word" cases. While the judge is given the discretion to prohibit the introduction of the defendant's prior sex offense if he finds it is "more prejudicial than probative [of the charges being tried]," seldom do judges exercise that discretion and prohibit the introduction of a prior sex offense into evidence because "common knowledge" holds that once a person commits a sex offense they will always have a "propensity" to commit other sex offenses, and the Rules enacted specifically allow the introduction of the prior conviction to show the defendant's "propensity" towards committing that type of crime. The problem with this is that all statistics collected on the recidivism rate of sex offenders finds that sex offenders, once released from prison after a conviction, have the second lowest rate of recidivism by committing a new sex offense of all criminal defendants. The lowest rate of recidivism is for persons released from prison after being convicted for murder, and runs around 1.2%. Sex offenders have a recidivism rate of 2.5%. All other crimes, such as robbery, arson, burglary or felonious assaults. have a much higher rate of the released felon committing the same crime. (See, my study, "Why Megan's Laws Are Unconstitutional," citing 12 statistical-studies involving over 200,000 released prisoners). These Rules, backed by popular demand, like the Mandatory Minimum Sentencing Laws, interfere with the independence of the Judiciary to tailor trials and sentences to individual's cases. The Judiciary was charged by the Founding Fathers with protecting the people of this nation from imprisonment obtained solely by the disparity between the resources available to the average individual to defend against criminal accusations, and the relatively unlimited resources the government can bring to bear to prosecute the crime. The ability to carry out this duty to the citizenry was strengthened and ensured by providing for an independent and impartial Judiciary armed with the power to release a citizen when the proceedings leading to imprisonment did not comport with "fundamental conceptions of justice," or, substantive due process of law. Codifying our laws, and eliminating Common Law, are not the only way the changes in our system of justice is endangering the spirit of the protections written into our Bill of Rights. It is not just prosecutors or legislators who have hamstrung the ability of our Courts to correct violations of our Constitutional rights. The Courts themselves, bowing to conservative public sentiment, seeing only conservative judges picked for appointment to higher courts, and hearing even our President publicly complaining about “liberal activist judges," have also played an important part in undermining the rights of the individual citizen to simple fairness, which is the cornerstone of substantive due process. The courts have done this by establishing progressively higher degrees of error which must be shown by a criminal defendant as their case progresses through the court system. Which leads to the next subject. Before I proceed, I must comment that conservatives reading this essay will attempt to discount the message by labeling the messenger as a "liberal." I counter by stating it is not liberal to expect fairness from our Courts of Justice, in all things they hear and consider, both civil actions and criminal prosecutions. I must also ask the reader to be patient. My conclusions, stated in the synopsis after the title of this essay, come after studying and considering a broad range of present conduct and policies when viewed in combination. The public sees and hears only bits and pieces of what I am discussing here, and those separated by large gaps of time determined by when the media turns its attention to some particular criminal case. My intent is to pull the disjunctive presentation presented by the media of "justice" in this nation, over time, into one condensed set of documents presenting a cogent argument detailing what has went wrong enough to allow decisions, such as the one in Shaw v. Terhune, supra., to stand uncorrected and without "remedy at law." This treatise pulls all the sparate areas of error discussed in my other treatises, essays and articles, into the larger problem discussed in this treatise, and advances a theoretical root cause of all the problems identified. The first step in solving a problem is understanding a problem exists. c.) Inadequate Staffing and Higher Standards of Review
Our court system's districts, or the geographical area they serve, were set up well over 100 years ago when the population of this nation was less than 60 million people. At that time, for example, a United States Court of Appeals was presented with 800 or 900 hundred cases per year. In the year 2000, U.S. Courts of Appeals decided over 56,000 cases, and had over 46,000 cases pending on backlog. How has our court system dealt with this massive increase in case load, (67% since 1980), when the numbers of courts assigned to geographical areas has not changed (except at the very lowest trial court level, where the problem is most visible), and the numbers of judges has increased, in the U.S. Courts of Appeals, by only 7% since 1980? The courts have implemented two methods of dealing with the increase in cases beyond the physical capability of the available judges to review. First, the courts have hired increasing numbers of law clerks as support staff for the judges, over which the judges act as supervising attorneys, similar to "of counsel," members of law firms, hired fresh out of law school. These law clerks, also mostly newly graduated from law school, (albeit some are career professionals), have been given more and more responsibilities of initially reviewing new cases filed and deciding whether or not the case should be brought to the judge's full attention, and contains merit, or whether the case presented is without merit. The judge, never having seen the trial record, relies on a short summary and recommendation prepared by the law clerk. In cases where the law clerk does not see any merit to the appeal, this summary is presented with an Order denying the appeal already prepared and attached for the judge to sign. The results produced by this system are inconsistent decisions in the form of erroneous decisions in criminal or Habeas cases, made by the U.S. District Courts, allowed to stand by an inexperienced law clerk reviewing the case and recommending against it being afforded a full review, while the very same error, which catches a more experienced law clerk's eye, or a judges eye, at a later date, is ruled upon and reversed. This leaves the first criminal defendant in prison, on an unconstitutionally obtained conviction, while the other later defendant receives justice. Justice becomes hit or miss, the luck of the draw. By way of example, yet not directly on point, a recent decision of the United States Court of Appeals for the 6th Circuit provides instruction. Three years ago I litigated a case named Searcy v. Carter, which I believe is published in 226 Federal Reporter 3rd Edition. (I am awaiting release and have sent all my case law and law books home). In Searcy's case I argued the date he filed his Habeas Corpus was not past the one-year deadline established by the 1996 Anti-Terrorism and Effective Death Penalty Act, because he had taken direct appeals from the denial of a Motion for New Trial to both the Ohio Court of Appeals and the Ohio Supreme Court which afforded him an extra 90 day tolling of the one-year time limit during the time he could have taken appeal to the U.S. Supreme Court. The Sixth Circuit denied Searcy a Certificate of Appealabilty, (also a new procedure enacted in 1996), stating that because Searcy's appeals were from the denial of his motion for New Trial, instead of a direct appeal from the trial itself, the 90 day tolling allowed for Direct Appeals did not apply. Mr. Searcy's Habeas was denied as untimely filed by the Court. Yet on October 22nd, 2003, in the case of Abela v. Martin, 348 F.3d 164, at 172-173 (6th Cir. 2003), the United States Court of Appeals reversed its previous holdings and held the additional 90 days tolling of the one- year time limit does apply to "post conviction or other collateral relief" proceedings by State prisoners in State courts. My counsel and I have looked at Mr. Searcy's situation and are going to attempt to reopen his appeal. However, there are no procedures in place, or road to the courtroom door, which provides a remedy for this situation. We must engage in, what I call, "creative litigation," with no assurance his situation will ever be corrected. Distressing to me are the facts that new evidence adduced at his New Trial hearing prove Mr. Searcy is innocent, and he is sentenced to 40 to 75 years in prison for a crime he did not commit. The victim of the robbery testified at the New Trial hearing that she had misidentified Mr. Searcy, and had subsequently contacted the prosecutor, after trial, stating she had seen the real robber. The trial court, because Mr. Searcy had a prior criminal record, "chose" not to believe the recantation of Mr. Searcy's identification, (an important distinction by law), a choice which, according to law, was not the judges to make without infringing upon the province of the jury which had rendered the guilty verdict based on a later retracted identification of the only witness to the crime. Again, this is but one example of what is happening on a regular basis in our courts as inexperienced law clerks are delegated the authority reserved to experienced, lifetime-appointed judges, who simply cannot physically read all the documents involved in the 56,000+ cases being decided per year. (See, "All the King's Horses..."). This increase in case load in the higher courts is not only caused by the increased numbers of cases being filed in today's litigation happy society, but is also caused by the design of the court system itself. Picture a funnel that is upside down. The base is filled with the local trial courts in every county in this nation. The top is the U.S. Supreme Court. The first level above the trial courts is the local District Court of Appeals, which usually, except in large counties containing major cities, hears appeals from four or five surrounding counties. In Ohio there are 12 District Courts of Appeals for 88 counties. Those 12 District Courts of Appeals have only 66 judges assigned to them and every decision issued must be ruled upon by a three- judge panel acting as one unit. This leaves only 22 panels able to hear appeals from 88 counties issuing decisions for 11,000,000 people. Above the Ohio Court of Appeals is the Ohio Supreme Court which must hear every appeal (or which is supposed to at least read them), from all decisions issued by these 22 appellate panels. Only seven judges sit on the Ohio Supreme Court, and they must act as one unit in deciding each case, and whether or not to hear it. They are presented thousands of cases per year. For State criminal defendants, the next step is the United States District Court in the area of where the prisoner is incarcerated, and a Petition for a Writ of Habeas Corpus. The burden and case load of these U.S. District Courts is staggering. In 2000 these courts; accepted 63,863 guilty pleas from federal defendants; conducted 6,746 criminal trials and 7,933 civil trials; adjudicated 1,192 Petitions for a Writ of Mandamus; adjudicated 26,462 Civil Rights Actions; adjudicated 27,446 Federal and State prisoner Habeas corpus actions, and ruled upon 26,759,850 pages of documents just in the Habeas Corpus cases alone. (See, my article, “What John Ashcroft Has Done, Or, The Good, The Bad, And The Ugly” (based on numbers appearing in “All the Kings Horses…”)). At least, that is how the numbers come out when all the statistics quoted in the Sourcebook of Criminal Justice Statistics, 2000 (NCJ-190251), are compiled and extrapolated. (See, Tables, 5.21; 5.38; 5.61 and 6.11). Less than 1% of all State prisoner Habeas Corpus actions result in relief being granted. That is little wonder considering another deception being perpetrated on Habeas litigants which I have personally caught a court doing. In a double-homicide, original Death Penalty case for a man named Ed Emerick, I assisted him in filing a Petition for a Writ of Habeas Corpus. Habeas Rule 5, because Ed is now broke, requires the State Attorney General, when filing their Answer/Return of Writ, to attach and submit to the U.S. District Court the complete transcripts of the trial. When we received the Answer/Return of Writ from the Ohio Attorney General, with that Answer we were served, as required by Federal Rule of Civil Procedure 4, with a copy of everything the Ohio State Attorney General was supposed to have been filed with the Court. Included were several boxes containing the 4,000+ pages of the trial transcripts. Subsequently, because Ed's case contained complicated legal issues and proof of Ed's innocence which was wrongfully excluded from the trial by the trial court judge, I was able to win a motion ordering appointment of counsel from the Federal Public Defender's Office in Dayton, Ohio. Attorney Beth Goldstein Lewis was appointed as counsel. (She has since quit the FPD's Office but they are still representing Ed, convinced as I am that he is innocent). When Ms. Lewis took over the case, she checked the files at the Federal Courthouse in Dayton to make sure everything was correct. What she found shook her, the entire staff at the FPD's Office, Ed and me. In a double-murder case, with Ed sentenced to 70 years to life, the Ohio Attorney General had intentionally deceived Ed and me by sending us a copy of his trial transcripts with the Answer/Return of Writ, but not filing a copy with the Court, knowing that without the trial transcripts before it, the U.S. District Court could not grant relief on the fact-intensive errors Ed had raised in his Petition for a Writ of Habeas Corpus. Further, because it is the duty of the Habeas Petitioner to complain if all the documents needed were not provided to the Court by the State, had Ed been denied appointment of counsel we would have never known the Court ruled on the Habeas without reviewing the trial transcripts, as is absolutely mandated by law. (see case law cited in “Methodology” section following “All the Kings Horses…" on prisonerlife.com) Neither the Clerk of the Court, nor the Judge, informed us of the failure of the Ohio Attorney General to file a copy of the transcripts with their Answer/Return of Writ, as mandated by Habeas Rule 5. Why? I have found there is a collusion between the State Attorney Generals, Judges and Clerks of the Courts in State prisoner Habeas Corpus cases to quietly ignore the lack of a trial transcript in the State's Answer/ Return of Writ, because the Federal Buildings do not have enough storage space to hold the transcripts of all the State Habeas Petitions filed, and that many of the Habeas Petitions denied by U.S. District Courts are denied without the Court ever seeing or reading the trial record of the case which is the only place the facts of many Habeas errors appear. This is perfidious--a deliberate breach of faith, and the indirect denial of a right precious to our Founding Fathers, and preserved in Article I of the Constitution. Upon leaving the U.S. District Court on appeal after the denial of a Habeas Petition, the State prisoner arrives at the local United States Court of Appeals. Those 12 U.S. Courts of Appeals are assigned 167 judges which operate exclusively as three-judge panels, for a total of 55 panels available on any given work day. 11,297 prisoner’s Petitions for a Writ of Habeas Corpus were decided by these 55 panels of judges in the year 2000. A total of 56,000+ cases were adjudicated by these 55 panels in 2000. To simply read the transcripts of the 11,297 Habeas cases, only 20% of their total case load, each judge had to read 866 pages of documents each and every work day during the year 2000, and then complete the other 80%-of their cases. The judges are required to read these cases, by law, not some law clerk. (See, "All the King's Horses and All the King's Men..., published on Prisoner-life.com's main "Articles" section, "Methodology" section). As with any constriction to a flow, as you move up the funnel the cases in the court system move faster and faster, receiving little more than a cursory glance, usually by an inexperienced law clerk, neither qualified, nor authorized by Article III of the Constitution, to make the momentous decisions affecting, sometimes as in Ed's case, the rest of some citizen's life. The above lengthy lead-in was necessary to give you a picture of what is happening in our court system. Add to that how the requirements for receiving relief increase as the defendant progresses up the funnel, and a clearer picture of the failings of our system emerges. 2.) Progressive Standards of Review Allowing Relief To be entitled to relief from an error on direct appeal, as stated earlier, Chapman v. California, supra., requires the error raised not be “Harmless beyond a reasonable doubt.” Acceptance by a State Supreme Court of a case is totally discretionary
and only a very few of the thousands of cases being appealed in any one
State ever receives a full merit review of the issues raised and denied
on Direct Appeal.
This is, of course, providing the incarcerated prisoner was able to meet all the procedural requirements and time deadlines in the State courts, and is not procedurally defaulted, a situation which prevents any review of the errors, no matter how grave of a constitutional violation they may be. This subject is covered in detail in my article "Civics: An Advanced Course Taught Only In Prison,"on PrisonerLife.com. 79% of all State prisoner Habeas cases are dismissed as procedurally defaulted, leading to no federal court review of error at all! But these higher standards for relief are not the end of it. The courts have created special standards to be applied over and above the standards for relief discussed above, when the person committing the error is an attorney or a prosecutor. Many Grounds for Relief filed by prisoners involve errors either trial or appellate counsel committed, or omitted, during their representation of the Habeas Petitioner. The court will first determine if an error was made, and then apply the standard of Strickland v. Washington, 466 U.S. 387 (1985), requiring a "reasonable probability that but for counsel's error the outcome of the proceedings would have been different." Counsel's actions are measured against what a "reasonable attorney" in counsel's position would have done, and not using hindsight, but viewed from counsel's actions or inactions at the time they were done. Then, using hindsight, and all the evidence adduced against the defendant, including that presented after counsel committed the error, the court determines if counsel's actions or inactions, if different, would have changed the outcome of the proceeding, whether at trial, or on appeal. Then, after applying this standard of review, the additional standards of 28 U.S.C. §2254(d) and Brecht applied also! So while the same error may have entitled the defendant to a reversal
and new trial under the "Harmless beyond a reasonable doubt" standard applied
on Direct Appeal, if appellate counsel never raised the error of trial
counsel's ineffectiveness in the appeal, because he works in the same Public
Defender's Office with trial counsel, for instance, or plays golf with
him, or socializes with him and does not want to see him either disciplined
or lose his license to practice law, this higher standard of review, one
almost never resulting in relief, protects counsel from jeopardy, and leaves
the defendants sitting in prison on a conviction that would have been held
as obtained with reversible Constitutional error on Direct Appeal, if it
had been raised, and presented correctly to the lower State Court of Appeals.
Like claims of ineffective assistance of trial or appellate counsel, claims of prosecutorial misconduct are also entitled to an additional "buffer" standard of review prior to the application of the heightened standards of relief in 28 U.S.C. §2254(d) and Brecht. But the standard for finding a prosecutor committed misconduct warranting a new trial is even more onerous than that for finding counsel ineffective. For claims of prosecutorial misconduct, the Habeas Court first applies the standard of review set forth in Darden v. Wainwright, 477 U.S. 168 (1986), requiring the prosecutor's conduct, "so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181. Meeting this standard is also near impossible. Then, as explained before, the two enhanced standards of 28 U.S.C. §2254(d) and Brech are also applied. All of these heightened standards are set by attorneys, whether acting as elected Legislators, or as Judges of the U.S. Supreme Court, and have but one affect--they protect other attorneys from professional embarrassment, from legal malpractice lawsuits, from losing their assets and from having any public blemish on their record that would hinder them in seeking public office. (See also, "Civics: An Advanced Course...;" "Doctrine of Finality"). Attorneys-are-protecting attorneys, even at the cost of uncorrected unconstitutional convictions being allowed to ruin citizens lives, and at a cost of hindering the evolution of the laws of this nation. I must state at this point that there are good attorneys who are not a part of the above. Look around your city and you will find attorneys who have devoted their life and career to doing nothing but criminal trial and appellate cases. Attorneys like William R. Gallagher of Cincinnati; Tom Miller of Cincinnati; Paul Mancino Jr. of Cleveland; Allen Adair of the Franklin County Public Defender's Office in Columbus, Ohio; David Bodiker. John Fenlon and Tom Wetterer of the Ohio Public Defender's Office; Fred Hoefle of Cincinnati; Professor James S. Liebman of the Columbia School of Law in New York; Professor Margery Koosed of the Akron School of Law; Todd James of the National Child Abuse Defense Resource Center in Holland, Ohio; Professor Mark Godsey of the University of Cincinnati College of Law; Professor Barry Scheck of the Cordoza School of Law in New York; Richard Swope of Reynoldsburg, Ohio and William Whitaker of Akron, Ohio, are all fine attorneys who daily fight for our rights and freedoms, and to preserve the legacy passed down to us by our ancestors, to name just a few. I must also name attorney Kevin Spiering of Cincinnati, a young and very bright attorney with a promising future, who with Bill Gallagher, joined me in my personal fight for justice. Exclusive practice of criminal law is a calling, and one which has long hours and few monetary rewards, when your chair is beside the defendant. Yet I know it is not on1y necessary, but has its own rewards. These men are the true heroes of our times. The others, the ones who turn their back on wrongfully convicted, or worse innocent citizens, and who perpetrate and support a court system that gives only the appearance of justice while protecting itself and its brethren, so they may continue to seek and accumulate power and prestige, these are the real enemies of freedom and all this Nation stands for. The Judicial System of this nation needs a complete overhaul from top to bottom. Unless this is realized by you, talked about and made a political issue, thousands of unconstitutionally convicted citizens, and innocent citizens, will continue to languish in our prisons, leaving old and broken, only to be replaced by new victims of justice. Someday, one of them may be you, or your child, because when the innocent suffer no test is given to see who qualifies, or who’s turn is next. How's your luck? II. How Delaying the Release of the Innocent Protects Attorneys. I ask how your luck is because wrongful convictions occur in this nation much more frequently than the government wants you to know. (See, my essay, "Collateral Damage"). "Collateral Damage" was written by me in February 2001. I sent it to James Peterson, Senior Staff Writer of the Playboy Forum. A year later I was contacted by Chip Rowe of Playboy. His letter to me appears in the "Letters" section of my personal website at PrisonerLife.com. In June 2002, Playboy published an article entitled "False Justice." That article tracks and expands upon my essays, "Collateral Damage," "Once You Are Accused," and "Civics: An Advanced Course Taught Only In Prison," which I also sent to Chip Rowe after he contacted me, and spent ½ hour on the phone with my attorney. Mr. Rowe's letter is linked to "False Justice," if you care to read it. In "False Justice," Mr. Rowe arrives at the same 5% innocent number I have been using for several years, however, he arrives at that percentage by a different route than I used. Mr. Rowe's percentage comes from an analysis of the numbers of Death Row prisoners in Illinois who were exonerated and released prior to Governor Ryan issuing a blanket Commutation of Sentence for all 167 Death Row prisoners in Illinois. That percentage of Death Row prisoners proven innocent prior to being put to death was 4.86%. My percentage came from a different source. Many years ago, prior to August 1995, I read an article in Prison Legal News citing to a U.S. Department of Justice study which found that between 8% and 12% of all State prisoners were either actually or factually innocent, and that 4% of all Federal prisoners were either actually or factually innocent. Paul Wright, Founder of Prison Legal News, has looked for that article and been unable to find it for me. He wrote me and conjectured that it may have appeared in a column PLN used to run that was written by a man named Dan Pens, entitled, "As A Matter of Fact." Paul stated that they did not have all of those columns in their archives. I had taken the mean of those percentages, and divided them in half, to arrive at my 5% innocent numbers. However, the point is that using two completely separate methods, Mr. Rowe and I arrived at the same percentage of error rate in our system of justice. That, I believe, indicates neither of us is too far off, and I hope gives you additional confidence in that 5% error rate. I do not believe that anyone reading this treatise has confidence that the Justice System is 100% efficient, or that it corrects the errors it makes during the appeal process 100% of the time, in light of the 147 persons The Innocence Project at Cordoza School of Law in New York, ran by Professor Barry Scheck, has caused to be released from the prisons of this nation as of March 2004, after proving them innocent with new DNA evidence. And this is but one of hundreds of such innocent projects across this nation who are obtaining the release of other wrongfully convicted prisoners each month. These citizens go into prison amid a fanfare of press conferences held by the police and prosecutors appearing on podiums before the lights and cameras of the local press, TV and radio, and come out of prison, proven innocent, an average of 9½ years later, with a one-inch blip appearing on page 12 of the local newspaper. As of December 2003, there were 2.1 millions U.S. citizens behind bars in this nation, and another 4.5 million on probation or parole. One in every 32 adults are incarcerated, on probation or on parole. If 5% of them are innocent, then 330,000 U.S. citizens, right now, and not counting those who have been released from government control over the past 40 years, are suffering undeserved oppression from both our government and society, which richly, loudly and continuously heaps upon ex-felons job, housing and social discrimination in our holier-than-thou pecking order. We strip them of their right to vote, to serve on juries, to hold Real Estate licenses, to sell Insurance, and in Ohio, even to obtain a license to sell cars. We strip them of their right to own a gun. I have seen ex- felons charged, tried and convicted of having a Weapon Under a Disability because they lived at home and their father, who has never been convicted of any crime, had a gun cabinet in the basement of the home, and sentenced to an additional 10 years in prison. One such man is in my cell block at Lebanon Correctional Institution in Lebanon, Ohio. Did you know that government funds are distributed to local communities based on the population as found by the Census Bureau taken once every 10 years? Did you know the prisoners held in the prisons outside these local communities are included in that Census count for that community? That adds over 5,000 people to Lebanon, Ohio, counting Lebanon Correctional, Warren Correctional, and the Minimum Security Correctional Camp located outside those two prisons. Yet few of the 5,000 prisoners held in those prisons are from Lebanon, Ohio, or the surrounding area. Most residents of Lebanon work in the Corrections Industry, or supply the daily needs of those 5,000 prisoners. Economic incentive for communities whose manufacturing jobs have disappeared overseas, to allow new prisons built in their area, are great. Most politicians are former prosecutors or judges. The prosecutor who was ultimately responsible for my wrongful conviction is now the State Treasurer, and plans to run for State Attorney General. Senator Mike DeWine of Ohio is the former State Attorney General. John Kerry is a former prosecutor. You can't build new prisons unless you have prisoners to fill them up. You don't want to run for public office and have your opponent pointing to innocent citizens you are responsible for placing in prison during your term as prosecutor, or judge. If you are a judge, and seek either election or appointment to a higher court, you do not want the stigma of having a high rate of conviction of innocent citizens from your court. Nearly all Legislators are attorneys, and as asserted above, attorneys protect attorneys. So how does the brotherhood of attorneys protect its brethren and fellow members of the Bar from the damaging stigma of being publicly exposed for having caused, or been involved in, the convictions of innocent people? How do they insure against closing down the 50 prisons the present 105,000 statistically innocent prisoners now fill? How do they avoid the economic chaos to the communities, loss of jobs, loss of government revenue, where those 50 prisons are located? Understand there are only 33 prisons in the entire State of Ohio, ahd they are a four billion dollar a year industry. Yet statistics of 5% innocent, nation wide, applied to 2.1 million prisoners, indicate 50 prisons across the nation would have to be closed if all of these 105,000 innocent prisoners had a remedy at law, and obtained release. This economic impact does not even include the Billions of dollars in law suits that would result from their release. Find me a politician who wants to be interviewed by 60 Minutes for opening this can of worms! The answer is obvious and simple, as to how attorneys, and I include everyone from U.S. Supreme Court Justices and Senators, down to local prosecutors, protect "their own." Simply do not provide a remedy at law. And better yet, do not provide a means of detecting the conviction of an innocent citizen, and no one will ever know you need a remedy at law. Then tell the public, every chance you get, two clichés that will stick in their mind and become common folklore so accepted that no one, except these innocent prisoner's families, who you can discredit as crying "sour grapes," will ever question. Burn into the mind of the public two simple phrases: "All prisoners lie."
By doing this, repeatedly in press conferences, on talk shows, in the newspapers, teaching it in the law schools, and treating all prisoner claims of innocence with disdain, a sigh and a condescending smile, the attorneys create a "Boy who cried wolf," mentality in the public mind. Those few attorneys, like Professor Barry Scheck and Professor James Liebman, who do not "go along with the program," can always be labeled as "liberals" not worth listening to, or portrayed as "overstating the problem." This has worked well for years, until DNA came along. The Senate just authorized $60,000,000.00 distributed to local police and prosecutors to test Evidence Kits containing DNA evidence that has been lying in Evidence rooms at police stations for 20 or 30 years. The purpose of this money is to allow that DNA test results be entered into the National DNA Database, containing the DNA profile of prisoners, in hope of solving hundreds of thousands of old unsolved crimes. The original Bill introduced into the Senate included provisions to pay for DNA testing for prisoners who have been claiming they are innocent, some for as long as 20 or 30 years. But Senate Republicans, (attorneys), eliminated that provisions from the final version of the Bill that was signed by President Bush last week. Last month, in response to international pressure, the government agreed to set up a review process for the "detainees" held by the military at the base in Guantanamo Bay, Cuba. What was wanted by the International community was a process where prisoners would be given an opportunity to prove to the U.S. they were innocent. The United States flatly rejected that request and instead set up a yearly "review" of those prisoner's cases at which the panel would decide whether or not there was "reasonable belief" there was cause to continue their detention. "Reasonable belief" is the standard of proof used in prison discipline hearings, and any prisoner can tell you the "we believe society" frequently comes to their "belief" against all evidence presented to the contrary. In the United States of America, in the year 2004, there is no Agency, no Commission, no branch of the Department of Justice, no State Agency in any of the 50 States where an incarcerated citizen asserting their innocence, regardless of the amount of new evidence they have obtained proving their claim, can write or call and have their proof reviewed, or claim investigated. In the United States of America, in the year 2004, there is no Court Rule in any State or Federal court which allows an incarcerated citizen who has obtained new evidence proving their innocence, where that evidence is of a non-DNA nature, to present that evidence before a judge and receive a review of that new evidence and the case, as a matter of right. All remedies available, such as a Motion for Leave to File a Motion For New Trial, or a Delayed Post-Conviction, are totally discretionary, and up to the judge, as to whether or not they are allowed to even be filed by the Clerk of the Court. The United States Supreme Court held in Herrera v. Collins, 113 Supreme Court Reporter, page 853 (1993), that whether or not a convicted citizen is in fact actually innocent of the crime for which they are convicted, is not an issue that raises a Question of Constitutional dimensions, and that the right of an innocent citizen not to be imprisoned is not guaranteed by the U.S. Constitution. Id.. These attorneys, by so holding, have insulted both the citizens of this nation's intelligence, and the Constitution of the United States which they took a sworn oath to uphold--to protect their own from the outrage that would arise across our land if a means of detecting and investigating prisoners claims of innocence, and the recognition of the right of an innocent citizen to be released from imprisonment, resulted in the release of over 100,000 innocent prisoners, as statistics now shown by DNA exonerations indicate may be imprisoned in this nation's Gulag. 5%...one in twenty, innocent and without even a government agency to write a letter to asking for help. On October 8th, 2003, after 13½ years incarceration, a new trial court judge, who replaced my original trial court judge when he retired, GRANTED my motion for Leave to File a Motion for New Trial, 7½ years after my retrial in 1996, based on my presentation of five new witnesses, U.S. Embassy records from the U.S. Embassy in Mexico City, Mexico, photographs, medical records, telephone records, a U.S. Passport, an autographed book dated in December 1988 dedicated to me by name, and records of the attendance of one of my witnesses at a Spanish School in Mexico, proving beyond any doubt that at the same time the alleged victim testified I was in Cincinnati, Ohio committing the crimes for which I was convicted and sentenced to four (4) consecutive Life Sentences, with a first parole board date of May in the year 2036, I was actually living on a small beach in Southern Mexico, over 4,000 miles removed from the alleged scene of the crime. The Granting of my Motion for Leave was totally discretionary. The first affidavit was obtained in April 1999 and submitted to the United States District Court in Cincinnati, in my Habeas Corpus proceeding, as newly discovered evidence of my innocence. Additional affidavits were obtained and submitted to both the U.S. District Court and the United States Court of Appeals up until the last document found, the U.S. Embassy records, which had been disclosed by the U.S. Department of State, after a five year wait, on June 17, 2002. These United States Courts told me, in no uncertain words, that newly discovered evidence proving I was innocent was irrelevant to any decision the Court made, because I had no Constitutional right to either be innocent, or to be released from prison because I was innocent These United States Courts not only refused to consider evidence proving I was innocent, but even refused to file my evidence and place it in the record of my case. The Clerk of the Court would stamp it “Received,” but refused to stamp it "Filed," and it was "filed" by my attorney. The difference is anything not "Filed" is not considered a "part of the record of the case," and can and will be safely ignored by the Judges reviewing my Appeal, as though it doesn't even exist. The United States Supreme Court, carefully presented, at a cost of $10,000, with overwhelming proof of my innocence, and presented with a Question asking if the Incarceration For Life of An Innocent Citizen Violates Due Process, refused to accept my case, or answer the Question, on April 21st, 2003. This treatise is not written in the abstract. It is written from personal experience. An experience which has cost me everything. I don't want to hear about a Constitutional Amendment banning Gay Marriages. I want to hear about a Constitutional Amendment entitling prisoners to an investigation of their claims of innocence, and if they prove that innocence, the guaranteed right to a Fast and Speedy release from prison, with a full investigation publicly revealing the names of the prosecutors, police, judges, or citizens who caused the wrongful conviction to occur, or a determination it was accidental. I want to see guaranteed compensation for the time that citizen spent in prison wrongfully convicted, including lost wages, attorney fees, court costs and compensation for mental anguish, pain and suffering, either garnished from the wages of the persons who falsely accused, or knowingly participated in the wrongful conviction, or from the coffers of the County where the conviction occurred, if it was by accident. The Constitutional Right to prove one's innocence, as a free-standing independent constitutional claim should be recognized at all levels of our court system and addressed with the utmost gravity and diligence. We need more courts and more judges, and less law clerks assuming and performing the duties of judges, especially as it is now being done--in secret. Most of all we need to sweep away all the artificial procedural barriers to addressing and finding the simple truth of criminal convictions and get back to the basics, distinguishing right from wrong, culpability from innocence, and crimes from moral or religious issues. One of the greatest weaknesses of Democracy is that elected representatives feel the need to justify their next election by showing their constituents all the new laws they caused to be passed. Yet in a Democracy that is over 225 years old, most laws that really needed to be passed have already been passed. We end up with representatives, desperate to distinguish themselves from their future opponents, passing laws to fix things that are simply not broken, while ignoring real problems in society because they fear controversy. We need politicians who pledge not to pass any laws unless a study is performed showing, because of some new technological change, or new statistical evidence, a new law is needed, or an old law has become outdated, and who concentrate on fixing problems like the structural deficiencies in our Justice System. We need a political party that does not present us with a choice of electing one of two attorneys to represent us in Congress, or The White House. We need a new political party in this nation that is not labeled as liberal or conservative, or represents only both ends of a wide spectrum of beliefs. We need a new political party that does not present us with candidates who come from the top one-percent of wealth in this nation, and who have a vested interest in laws designed to maintain their wealth. A party who thinks if a man can buy this prescriptions from Canada cheaper, then it is his right to do so. A party that believes innocent citizens should be able to get out of prison as fast as they were wrongfully put in there. A party who believes there should be enough judges to read the documents filed in their courts. A party that believes a Constitutional error requiring a reversal on Direct Appeal is a Constitutional error requiring a Federal Court to issue a Writ of Habeas Corpus, and that error is error, no matter when or where it is addressed, and should be reviewed under the same standard in every court to hear the case. This is still the best system of justice and government that has ever been invented by man. Yet the pride we have in it should not be a drunken pride. Pride is like whiskey, a man gets too much of it, he doesn't always think too straight. Anything can be improved. Even the United States. Until next time this is Jim Love reporting From The Front Line.
NOTE: Additional cases involving
innocent prisoners can be found at http://justicedenied.org
and http://forejustice.org
(containing stories of over 1,400 wrongly convicted people in 20 separate
nations). Information on over 200 books and articles related to wrongful
convictions can be obtained at http://forejustice.org/biblio/bibliography.htm.
James F. Love #329-475
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James Love. All Rights Reserved.
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