Amanda and Virginia

It seems as though Amanda Knox’s struggle and eventual overturning of her murder conviction by an Italian appellate court still has the country’s imagination.  How could such a cute, “all-American” girl get railroaded by a prosecutor who felt “in his gut” she was guilty when the evidence said likewise?  Even more mysterious was an appellate process that actually allowed the prosecutor to argue for an increased sentence.  When Amanda stood in court awaiting the judge’s ruling there was the possibility that her twelve year sentence would turn into life.

“Talking heads” (those banal, self-described experts who pop up daily on “news shows”, not the ‘80’s rock band) decried the Italian justice system.  And, a few noted the appearance of a large crucifix behind the appellate judges, peering down on the defendant as the court’s decision was rendered (I wondered, as I saw that, if the Italians ever thought of actually applying the “true” justice of calvary and forgiving her for any sins she may have committed).  We Americans are an interesting lot.  We think our system is somehow superior until, that is; we get caught up in its wheels and get slowly grounded down by the arcane unfairness of the American judicial system.

Take Virginia’s criminal appellate process.  Suppose you’re a criminal defendant, unschooled in the law, poor and therefore unable to hire counsel.  You transfer from the county jail to the custody of DOC and end up at their receiving unit where you meet another inmate who tells you about an evidentiary ruling that your attorney (court appointed) overlooked.  You immediately hand draft a motion with the trial court to re-open your case.

Sorry, you lose.  Virginia law holds that once a defendant is transferred to DOC custody that trial court loses jurisdiction over the case.  The inmate can’t get his case re-opened.  Simply put, there is no court that can hear this case.

What, you might ask, happens if the man or woman is actually innocent?  You mean like Thomas Haynesworth who spent 17 years in prison for rapes DNA conclusively proves he didn’t commit?  Yet, as I write this blog, Haynesworth – released 6 months ago by a conditional pardon that commuted his sentence but did not exonerate him – still waits for the Virginia Court of Appeals to overturn his convictions and rule him “innocent”.  One of the reasons for the delay:  Virginia law permits “extraordinary appeals” based on writs of actual innocence.  However, the evidence establishing your innocence must be discovered and presented “within a year of conviction”. 

And then there’s the entire habeas corpus process.  The Sixth Amendment to the United States Constitution specifically guarantees all criminal defendants facing jail time, the right to the “effective assistance of counsel”.  That right is one of the fundamental bedrock constitutional guarantees of our system.  Yet today it is as difficult to negotiate the meaning of that clause as a treasure map written in Aramaic.

First, there are numerous procedural prerequisites (filing in state court for example) before you ever reach Federal Court.  Then, even if you have overcome the procedural hurdles you have to meet the “test” set out by the U.S. Supreme Court in Strickland v Washington:  1) the attorney didn’t meet an objective standard of effectiveness and      2) had the client had an effective lawyer a different result would be reached.  How can you ever prove the second part of the test?  You very seldom can which is why each year thousands of inmate cases are thrown out.  Unfortunately, habeas actions are the only recourse inmates have once their appeals are exhausted.  Does effective assistance of counsel truly exist?  Sadly, no.

And, Amanda at least had public opinion on her side.  Americans overwhelmingly think prosecutors and police are there to “protect and serve” and play fair.  A defendant who has been convicted had the extra burden of establishing his innocence.  We presume the law wouldn’t have wrongly convicted anyone even though we see otherwise.

Amanda Knox’s family spent their life savings carrying the message of her mistreatment at the hands of the Italian judiciary.  They nearly bankrupted themselves getting justice.  I ask you how many innocent men and women rot in American prisons who deserve justice?  How many were over-sentenced and deserve another chance at freedom?  Tell me, would Amanda Knox be free today if she’d been convicted in Virginia?

Worth Reading

This past week I came across a number of articles worth mentioning. 

Want to understand why we should be offended over the government’s assassination of an American citizen/terrorist in Yemen?  Read law Professor Jonathan Turley’s Op Ed in Wednesdays (10/5) USA Today.

As the professor noted:

“No republican can long stand if a president retains the unilateral authority to kill citizens whom he deems a danger to the country.  What is left is a magnificent edifice of laws and values that, to quote Shakespeare’s Macbeth, is ‘full of sound and fury, signifying nothing.’”

Be afraid when government, with the power to imprison or kill, unilaterally exerts that power without so much as a whimper about law or justice.

In that same day’s paper, the editors of USA Today, noting Amanda Knox’s release, drew a cogent comparison to the Casey Anthony case. 

“How did Knox end up under arrest, held without bail and imprisoned for four years?  Perhaps one part of the answer is that her case had more in common with Anthony’s than first impressions would suggest.  A rush to judgment in any language is a dangerous thing . . . So which system is worse?  One that might let a killer go free or one that puts an innocent person in jail?  Put yourself in Knox’s shoes, and the answer is obvious.”

Two very powerful points.  Here is the simple truth:  prosecutors and police make mistakes.  They want to close cases and get wins.  I have literally met hundreds of men who were lied to, cajoled; you name it, to get a conviction.  Were they guilty?  In most cases, yes.  But when the police are allowed to lie, to distort the truth, justice suffers.

And finally, don’t think Virginia needs prison reform?  Read about the success in Texas with early release, alternative sentencing for non-violent felons, and emphasis on programs.  The Texas Public Policy Foundation reports in its September 2011 newsletter of significant money savings as well as reduced inmate population and lower crime rates.  Perhaps Governor McDonnell could learn a few things from Texas Governor Perry.

Finally “The Daily Press” (Hampton Roads newspaper) called for prison reform on September 26^th.  How many more editorials have to be written before the Governor and the General Assembly finally do the right thing?

Opie, Amanda and WM3

Opie fought the law – again- and, as usual, the law won.  As I write this blog, Opie is sitting in the “dry” holding cell in 7 building, a/k/a “the hole”.  What is a “dry” holding cell?  Glad you asked.  A dry cell is a bare cell.  There is a mattress placed on the floor.  A commode is also there.  However, there is no water in the commode; there is no sink, no toilet paper; nothing.  The inmate is placed in the dry cell and “observed”, until he defecates.  Then the stool is examined for contraband.

Opie was on the ball court.  There were about five of us out there.  For some “weird” reason our rec yards have been opened infrequently the last two weeks.  The decent officers tell us they’re short-handed.  See, DOC is facing a money crunch.  They have almost 40,000 of us locked up and Virginia can’t afford it.  DOC’s director, Harold Clarke, sent a message to the employees on September 30^th that Pennsylvania was ending their $20 million lease of a Virginia prison.  “It puts”, wrote Clarke, “DOC in a difficult financial position.”

Anyway, Opie’s shooting basketball when the officer spies a blue-bagged lump in his sock.   “Bring that over here”, the officer demands.  “F--- You” replies Opie who proceeds to take the bag out of his sock and ingest it.  So Opie is taken out in handcuffs, his bed area cleaned out, he’s thrown out of college, and, as I write this, he still hasn’t gone.

Opie, as I’ve written before is a good kid deep down.  But, he is heavily institutionalized.  All he has known since he was a child is juvenile hall, courts and prison. He runs game in here because, well that’s what prison does to you.  It teaches you to be hard, to be dishonest, to snitch, to prey on the weak, to mistrust society.  And unless and until the politicians have the guts to admit that corrections is nothing but a scam, there won’t be real rehabilitation.

Opie is a poster-child for how screwed up this entire system is.  When I met Opie in December, 2010 (ten months ago) he had a 2.0 GPA and was regularly getting in fights.  Now, he has a 3.4 GPA.  With the exception of smoking, wine-making and tattoos, he’s a model inmate.  Opie is at a crossroads.  He tries to do right and still skirt the rules a little and they add time.  He is on the fringe of being that guy I see in here who eventually loses all hope, gets out, comes back and spends the rest of his life locked up.  The system has failed the Opies of the world.

Which leads me to Amanda Knox and the West Memphis Three.  In this country there is an immediate, general consensus that if a person is found guilty “they must have done it”.  Over and over we see evidence of police malfeasance, prosecutorial corruption, incompetent counsel.  We see a system where over 2.3 million are locked up, the vast majority for nonviolent offenses, and we turn a deaf ear.

If even 1% of those incarcerated are actually innocent, that is 23,000 men and women whose lives have been unjustly stripped from them.  Imagine 5%:  that’s 115,000!  Amanda Knox’s family has practically bankrupted themselves to get her free from an Italian prison.  Who is going to give that young girl her four lost years back?  If it wasn’t for certain Hollywood celebrities caring about their cause, the West Memphis Three would still be on death row.

This past weekend a family member remarked during a visit with me how unfair my sentence is and how depressing the prison is.  And I told her prison has always been like that.  It’s just until you know someone going through it, you turn a blind eye to the despair and filth and violence present in the state’s prison system.  “After all”, you rationalize, “bad people go to prison and they get what they deserve”.

Here’s a life lesson:  even good people can do stupid things.   And sometimes those stupid things break the law.  But that doesn’t justify what passes for “corrections”.

Don’t wait for a friend or loved one to get caught up in the system before you react.  Demand your elected representatives do something now.  Push for prison reform, real reform.  Opie is someone’s son.   He’s more than a number.