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?

Don't Give Up the Fight

This week I did something in a legal pleading I never considered doing before. In my Petition to the Virginia Supreme Court challenging my sentence on Sixth Amendment grounds, I deviated from mere arguments on the application of the law. In my conclusion I quoted from both Bob Dylan and Bob Marley and urged the Judges on the court to address the unjust results that are so prevalent in multitudes of cases involving the incarcerated.



I normally shy away from political statements in the legal documents I draft. Perhaps it was because of my legal training or it may have been reading “jailhouse lawyer” documents that were heavy on flowery language about freedom but lacked basic knowledge of statutes and case holdings. In either case, I urge guys to focus on what the law says rather than go on some self-serving “it’s all about me” tirade that focuses on using big words without making a point.


I changed my rule with my own pleading. I did so after two guys spoke to me about my incarceration. The first guy is one of my GED students. He’s 22 and an extremely bright kid. His last grade completed: 8th. He was in and out of alternative school and juvenile detention. Yet, placement testing indicates he reads at a college level. He always has a book with him, philosophy mostly. This week we were discussing Immanuel Kant.


He told me “you’re the smartest guy I’ve ever met”. I told him, if I was so smart, I wouldn’t have done what I did and risk my family and my freedom!


But then he said this: “You’re smart enough to tell these people prison isn’t the answer.”


The second man who spoke to me was one of the law librarians. “Ty” has been locked up since the mid-eighties for a series of store robberies to support a drug habit. In his early sixties now, he is ineligible for parole because of his multiple offenses. He has six more years before he’s released. Ty is one of the men I hold in deep regard. He is a kind, wise gentleman who has seen and overcome a great deal of brutality in the prison system. I trust his opinion and value his friendship.


He was watching me craft my arguments for the court when he told me that “so many of the men in here fighting their own cases take their cues from you. They hear you talk about changing the system, speaking out, not losing hope. They’re starting to believe things will get better”.


There is a Bob Marley song called “Get Up Stand Up”. Over and over, with the reggae beat moving on, Marley sings “don’t give up the fight.” I listened intently to that song the other evening as I put the finishing touches on my brief.


Supreme Court Justice Steven Breyer in a television interview with Fox News said the following:


“Judges are not politicians. You can’t hold your finger up to the direction of the political wind to judge with justice.”


I have made that point to the Virginia Supreme Court. Whatever politicians may say, the simple fact is the current level of incarceration and the length of sentences handed down is neither just nor moral.


In all likelihood, the court will reject my Petition. That’s alright. I will fight on; next step will be the United States District Court. Too much hinges on my situation: my own personal freedom and the hopes of a great many men in here that the system isn’t completed corrupt.


In an article recently in Sport Illustrated, Saints quarterback Drew Brees was profiled as “Sports Person of the Year”. He and his wife have worked tirelessly for New Orleans recovery from Hurricane Katrina.


His road to success wasn’t easy. He faced numerous obstacles and disappointments. He was counted out many times. But, he never gave up. He always had faith.


At the end of the day, faith is a good enough reason to keep fighting for what’s right.