Legal News. Dedicated to Protecting Human Rights. Judge Not: Judges Benched for Personal Misconduct. by Gary Hunter & Alex Friedmann

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1 P R I S O N Legal News VOL. 20 No. 8 ISSN Dedicated to Protecting Human Rights Inside Judge Not: Judges Benched for Personal Misconduct They decide hot-button topics ranging from abortion and racial discrimination to religious freedoms and contested elections. They can put you in prison or vindicate your civil rights. They can even sentence you to death. Who am I talking about? Judges. Of all the public officials involved in the justice system, including the police, prosecutors, prison guards and parole officers, judges wield the most influence and power. Presumably, then, when we entrust members of the judiciary with such power we expect them to follow the law and conduct themselves in an ethical and professional manner. Unfortunately that is not always the From the Editor 8 Sotomayor Nomination 12 Brett Dignam Interview 16 California Health Receiver Motion 20 Oregon s Expensive Prisons 22 Taser Suit Attorney Fee Award 25 Jailhouse Lawyer Review 28 Ohio parole Suit 32 Texas Judges Faces Removal 34 Illinois Phone Suit Proceeds 37 Arpaio Loses Records Suits 38 BOP Guards Convictions Upheld 44 News in Brief 50 by Gary Hunter & Alex Friedmann case, as demonstrated by the following recent examples of judicial misconduct. Federal Judicial Hijinks On February 6, 2008, Massachusetts U.S. Bankruptcy Court Judge Robert Somma, 63, was pulled over following a minor car accident and charged with driving while intoxicated. He was wearing high heels, stockings and a cocktail dress at the time, and the arresting officer noted that the judge had to retrieve his driver s license from his purse. The following week Somma pleaded no contest to the misdemeanor charge; his license was suspended for a year and he was ordered to pay a $600 fine. He tendered his resignation two days later. However, after more than 200 attorneys signed on to a letter of support submitted to the First Circuit Court of Appeals, Somma sought to rescind his resignation. He made a mistake; he took responsibility for it, said First Circuit Executive Gary H. Wente. Ultimately, though, Somma agreed to step down. The United States Court of Appeals for the First Circuit and Judge Robert Somma have agreed that he will not resume service on the United States Bankruptcy Court for Massachusetts but is leaving to pursue other endeavors, the Office of the Circuit Executive wrote in a terse statement issued May 30, Somma is now employed at the Boston law firm of Posternak Blankstein & Lund, as senior counsel. While he was not charged with ethical misconduct, apparently his penchant for crossdressing and drunk driving was too much for the dignity of the federal courts. 1 The resignation of another federal judge, U.S. District Court Judge Edward W. Nottingham, became effective October 29, Nottingham, who served as the chief judge for the District of Colorado, came under fire when a messy divorce settlement with his third wife revealed salacious details about his personal life, and his problems steamrolled from there. The first of four complaints against Nottingham was related to his admission in his divorce case that he had spent $3,000 during a single night at a strip club. Complaint number two was lodged by a disabled attorney who blocked Nottingham s car with her wheelchair after he parked in a handicap parking space. The attorney said Nottingham identified himself as a federal judge and threatened her. He was fined $100 for the incident. A third complaint accused Nottingham of soliciting prostitutes using his court-issued cell phone and visiting an escort service s website while at work. He was also accused of lying to investigators about the accusations. On October 10, 2008, a fourth complaint was filed after a prostitute testified that Nottingham was one of her clients and had asked her to lie to federal authorities investigating their relationship. Although Nottingham referred to the issues raised in the complaints as private and personal matters involving human frailties and foibles, he announced his resignation on October 21, The misconduct charges were then dropped by the Judicial Council of the Tenth Circuit as being moot. The Council noted that the former chief judge may have made false statements during the disciplinary investi-

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3 PUBLISHER Rollin Wright EDITOR Paul Wright ASSOCIATE EDITOR Alex Friedmann EXECUTIVE DIRECTOR Donald W. Miniken Jr. COLUMNISTS Michael Cohen, Mumia Abu Jamal, Daniel E. Manville, Kent Russell CONTRIBUTING WRITERS Matthew Clarke, John Dannenberg, Gary Hunter, David Reutter, Mike Rigby, Sam Rutherford, Brandon Sample, Silja J.A. Talvi, Bob Williams & Mark Wilson LAYOUT Lance Scott/Catalytic Communications PLN is a Monthly Publication A one year subscription is $24 for prisoners, $30 for individuals, and $80 for lawyers and institutions. Prisoner donations of less than $24 will be pro-rated at $2.00/issue. Do not send less than $12.00 at a time. All foreign subscriptions are $100 sent via airmail. PLN accepts Visa and Mastercard orders by phone. New subscribers please allow four to six weeks for the delivery of your first issue. Confirmation of receipt of donations cannot be made without an SASE. PLN is a section 501 (c)(3) nonprofit organization. Donations are tax deductible. Send contributions to: 2400 NW 80th Street #148 Seattle WA (206) Fax (206) Please do not mail PLN paperwork for an ongoing case or request legal advice. PLN is not a legal service provider and cannot give legal advice. PLN reports on legal cases and news stories related to prisoner rights and prison conditions of confinement. PLN welcomes all news clippings, legal summaries and leads on people to contact related to those issues. Article submissions should be sent to - The Editor - at the above address. We cannot return submissions without a SASE. Check our website or send a SASE for writers guidelines. PLN is indexed by the Alternative Press Index, Criminal Justice Periodicals Index and the Department of Justice Index. Judicial Misconduct (cont.) gation, but he was not criminally charged. See: In re: Nottingham, Judicial Misconduct Complaint No , et al. (Judicial Council of the Tenth Circuit). Nottingham said he was embarrassed and ashamed for any loss of confidence caused by [his] actions and attendant publicity, and apologized to the public and the judiciary. The former chief judge, who was dubbed Judge Naughty by the local press, is now in private practice in Denver. He still faces an ethics complaint filed with the Colorado Attorney Regulation Counsel. Judge Nottingham had been appointed by president George H.W. Bush and was generally fair in lawsuits filed by prisoners. As more details of his sexual proclivities circulated in the local media, judge Nottingham held a bench trial on one of the last cases before he resigned which was a lawsuit brought by federal prisoner Mark Jordan challenging the constitutionality of the Ensign Amendment, the statute which bars federal prisoners from receiving sexually explicit materials in the mail. He quickly upheld the statute. Apparently it is immoral for prisoners to look at pictures and cartoons depicting nudity while judges consort with prostitutes with impunity until their spouses file for divorce. U.S. District Court Judge Samuel B. Kent, 59, of the Southern District of Texas, also brought unwanted scrutiny to the federal bench. On Sept. 28, 2007, Kent received a three-page reprimand and 120- day suspension with pay from the Fifth Circuit Judicial Council, stemming from a complaint of sexual harassment. See: In re: Complaint of Judicial Misconduct against United States District Judge Samuel B. Kent, Docket No (Judicial Council of the Fifth Circuit). Kent s case manager, Cathy McBroom, accused the judge of touching her in a lewd manner without her permission on several occasions. The abuse began after Judge Kent returned to work intoxicated. He attacked me in a small room not 10 feet from the command center where the court security officers worked, McBroom stated. He tried to undress me and force himself upon me, while I begged him to stop. He told me he didn t care if the officers could hear him because he knew everyone was afraid of him. McBroom s request for harsher sanctions against Judge Kent was denied by the 3 Fifth Circuit in December Dissatisfied with the light punishment imposed by the appellate court, McBroom hired Houston attorney Rusty Hardin. On August 28, 2008, Kent was indicted on one count each of abusive sexual contact, attempted aggravated sexual abuse and obstruction of justice. Kent s secretary, Donna Wilkerson, claimed that the judge had sexually abused her, too, and Kent was indicted on three additional counts on January 6, He was the first federal judge to ever be charged with sex-related offenses. Kent later pleaded guilty to lying to federal investigators. Although the sex charges were dropped, he admitted that he had engaged in nonconsensual sexual conduct. Kent received a 33-month prison sentence on May 11, 2009; he was also fined $1,000 and ordered to pay $6,550 in restitution to his victims. See: United States v. Kent, U.S.D.C. (S.D. Tex.), Case No. 4:08-cr-0596-RV. He was given the opportunity to further reduce that sentence by one year if he sought treatment for alcoholism while in prison. Kent then announced his retirement from the bench due to disability alcoholism and mental illness. By retiring rather than resigning, he would be able to continue receiving his $174,000 annual salary. However, the Fifth Circuit refused to grant him disability status, stating a claimant should not profit from his own wrongdoing by engaging in criminal misconduct and then collecting a federal retirement salary for the disability related to the prosecution. After members of Congress demanded that he resign or face impeachment, Kent agreed to step down effective June 2, 2010, which would have allowed him to collect his salary for another year while he was incarcerated. Unsatisfied, the House unanimously voted to impeach him, and Kent resigned effective June 30, 2009 before the Senate could consider the articles of impeachment. It is now time for justice: justice for the American people who have been exploited by a judge who violated his oath of office, stated U.S. Rep. Lamar Smith. The lenient punishment initially imposed by the Fifth Circuit, and the secretive manner in which it was issued, caused some critics to question the conduct of the appellate court. Prior to the complaint against Kent, of the 671 judicial complaints filed in the Fifth Circuit from 2000 to 2007, none resulted in formal

4 Judicial Misconduct (cont.) discipline. Another federal judge in the Fifth Circuit, Louisiana U.S. District Court Judge G. Thomas Porteous, Jr., 62, also faces impeachment. As part of a judicial disciplinary investigation, Porteous acknowledged that he had filed a bankruptcy proceeding under a false name, made false statements, concealed assets and gambling debts, and solicited and received money and gifts from attorneys who had cases pending in his court. Judge Porteous was also accused of misconduct in a bankruptcy trial, in which he denied a motion to recuse based on his relationship with lawyers in the case and failed to disclose that the lawyers in question had often provided him with cash. On September 18, 2008, the Judicial Council of the Fifth Circuit issued a public reprimand and suspended Porteous from hearing any cases for two years. The Council had previously found that he had engaged in conduct which might constitute one or more grounds for impeachment. Although Judge Porteous was not charged with any criminal wrongdoing, the Judicial Conference of the United States recommended to Congress that he be impeached. The House Judiciary Committee voted unanimously to proceed with an impeachment investigation, and the U.S. House of Representatives passed a resolution on January 13, 2009 (H.Res. 15) that authorized the Committee to determine whether Porteous should be impeached and removed from office. In May 2009, U.S. Rep. Steve Scalise urged the Judiciary Committee to act swiftly to complete the investigation, following a three-month delay due to a conflict of interest involving the private attorney appointed to oversee the impeachment process. Until he is impeached, Porteous remains a federal judge and continues to collect his full salary. In defending against the disciplinary complaint, Porteous claimed he had alcohol and gambling problems, as well as a genetic pre-disposition to depression, which contributed to his misconduct. The issues raised in the complaint against Judge Porteous were discovered during an FBI investigation of Louisiana state court judges (where Porteous served for 10 years before joining the federal bench), dubbed Operation Wrinkled Robe. See: In re Complaint for Judicial Misconduct against U.S. District Judge G. Thomas Porteous Jr., No (Judicial Council of the Fifth Circuit). Most recently, Alex Kozinski, 58, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, was admonished on June 5, Kozinski was accused of having sexually explicit photos and videos on his publicly-accessible website, including a photo of naked women on all fours painted to look like cows, a video of a half-dressed man cavorting with a sexually aroused farm animal, and a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair. Kozinski said the risqué material, which was never meant to be publicly available, consisted of files he had received in s from friends and acquaintances over many years. The files were stored on a personal computer at his home that was connected to the Internet using web server software. It was not intended to be a public website, and site visitors had to know the specific folder where the images were located in order to access them. The admonishment was handed down by the Judicial Council of the Third Circuit since there was a conflict of interest in the Ninth Circuit. The Council found no ethics violations as a result of Kozinski s conduct, but said he had exercised poor judgment by failing to take safeguards to prevent the sexually explicit material from becoming publicly accessible, and that his carelessness was judicially imprudent. Ironically, at the time the inappropriate online content was reported by the Los Angeles Times on June 11, 2008, Judge Kozinski was overseeing a high-profile obscenity trial. Due to the resultant publicity he declared a mistrial in that case. Kozinski himself asked the Council to investigate the explicit photos and videos on his website, and apologized for causing embarrassment to the federal judiciary. See: In re Complaint of Judicial Misconduct, No (Judicial Council of the Third Circuit). State Court Corruption State court judges are far more numerous than federal judges, and consequently there are more incidents of misconduct among the state judiciary. The following examples are only some of the cases reported within the past year. In August 2008, the Montana Judicial Standards Commission heard testimony against Lincoln County Justice of the Peace Gary D. Hicks, alleging that he demanded sexual favors from defendants in exchange for lighter sentences. Nine women testified before the five-member Commission. They accused Hicks of demanding sex in exchange for leniency, making inappropriate comments about their looks, and even stopping by their homes on occasion. There certainly was a sense that if they had sex with him, they d be treated with leniency in his court, said Steven C. Berg, an attorney appointed to investigate the allegations. Earn an Adams State College Degree via Correspondence Courses 4

5 The Commission recommended in October 2008 that Hicks be removed from the bench. He was ordered removed by the Montana Supreme Court on December 30, 2008, after the Court found the accusations had been proven by clear and convincing evidence. In the meantime Hicks had filed two lawsuits against Lincoln County, accusing the county commissioners of slander and causing him emotional distress, and arguing the county was required to cover his legal fees. The county settled the latter lawsuit and agreed to pay Hicks $40,000. New York Family Court Judge David F. Jung was removed from the bench by order of the Court of Appeals New York s highest state court on October 28, Jung had repeatedly held hearings in which he revoked defendants parental rights, even though he knew they were incarcerated and could not appear in court. In several cases he sentenced the defendants in absentia to more jail time. It was Jung s policy that prisoners would not be produced for a proceeding unless [they] specifically asked to be produced ; however, incarcerated defendants were not informed of that policy and Jung said they had to learn about it by word of mouth. He also enforced a policy that imposed strict deadlines on defendants who requested representation by public defenders. In one case he sentenced an illiterate and learning disabled woman to 180 days in jail after her request for counsel was made too late. The Court of Appeals found that such policies resulted in gross and repeated deprivation of the fundamental right to be heard... Jung argued, unsuccessfully, that his actions were within the wide discretion afforded to Family Court judges. See: Matter of Jung, 2008 NY Slip Op 08155, 11 NY.3d 365 (NY Ct. Appeals 2008). In December 2008, a federal grand jury indicted former New York Third Judicial District Supreme Court Justice Thomas Spargo, 65, on charges of attempted bribery and attempted extortion. The state Commission on Judicial Conduct had ruled in 2006 that Spargo should be removed from office because he handed out coupons for free gas and coffee and bought drinks for voters during one of his election campaigns. He was also accused of trying to shake down attorneys for contributions to his legal defense fund. Spargo was removed from the bench after the Court of Appeals found he was an active participant in raising funds for his personal benefit from lawyers with cases before him. His federal prosecution is still pending. See: United States v. Spargo, U.S.D.C. (N.D. NY), Case No. 1:08-cr GLS. This case should demonstrate that the FBI will pursue all allegations of judicial corruption vigorously, as public corruption violations are among the most serious of all criminal conduct and can tear at the fabric of a democratic society, stated FBI special agent John Pikus. On December 10, 2008, South Carolina County Magistrate Judge William E. Gilmer, 61, was arrested and charged with filing a false police report. Gilmer had filed a report with the Honea Path Police Department in August 2007, claiming he received a threatening phone call from someone who said Gilmer s wife was having an affair. He later admitted there had been no phone call or threat. This incident should not have ever happened. You expect a report made by a County Magistrate to be true, stated police chief David King. On January 6, 2009, Hinds County, Mississippi Circuit Court Judge Bobby DeLaughter was indicted by a federal grand jury on felony counts of conspiracy, fraud and harassment of a witness. DeLaughter, a former prosecutor, is accused of making favorable rulings in a high-stakes case in exchange for being considered for an appointment to a federal judgeship. DeLaughter is perhaps best known for his successful 1994 prosecution of white supremacist Byron De La Beckwith for the civil rights era murder of Medgar Evers. Is it ever too late to do the right thing? For the sake of justice and the hope of us as a civilized society, I sincerely hope and pray that it s not, he said at the time. According to federal prosecutors, DeLaughter was improperly influenced by attorney Richard Scruggs who is currently serving a 7-year prison sentence for bribing two judges, including DeLaughter in connection with a multi million-dollar 5 asbestos litigation fee dispute between Scruggs and a former business partner. DeLaughter allegedly had ex parte communications with Scruggs legal team and issued rulings in his favor; the judgment in the case saved Scruggs an estimated $15 million. In return, Scruggs encouraged his brother-in-law, then-u.s. Senator Trent Lott, to nominate DeLaughter for a federal judgeship in the Southern District of Mississippi. Scruggs and his associates also reportedly hired one of DeLaughter s close friends, paying him $1 million to influence the judge. In a motion to dismiss the criminal charges, DeLaughter s attorneys argued $ $ $ $ $ $ $ $ $ $ $ CONVERT YOUR POSTAGE STAMPS Into MONEY ORDERS, PACKAGES, SAVINGS or Wired Money Transfers WE HAVE RAISED OUR REIMBURSEMENT RATES 24-HOUR TURNAROUND Please see Details in our Ad on the inside front cover CLN P.O. Box 687 Walnut, CA THOMAS B. NOLAN, ESQ. LAW OFFICES OF THOMAS NOLAN Parole Consideration Hearings, Parole Revocation Hearings, Habeas Petitions, Criminal Appeals, and Civil Rights Cases, all at reasonable rates. Mr. Nolan has been successfully litigating California prisoner civil rights cases since P.O. Box San Francisco, CA Phone: (415) No Collect Calls. California Cases Only.

6 Judicial Misconduct (cont.) that Lott s consideration of DeLaughter for a lifetime appointment to the federal bench was worth nothing of value, and thus no crime was committed. The motion was denied and DeLaughter is scheduled to go to trial on August 17, He remains free on $10,000 bond. Florida Second District Court of Appeal Judge Thomas E. Stringer, 64, resigned on February 10, 2009 following a tabloid-style scandal related to his involvement with a stripper named Christy Yamanaka. It is axiomatic that Judge and Stripper showing up in a headline is never a good thing, especially if you happen to be the Judge, wrote a columnist for the Tampa Tribune. Yamanaka claimed that she and the married judge had been romantically involved, that he helped her hide assets from creditors by depositing her income in his bank accounts, and that he had put her up in an apartment rented under his name. She went public after Stringer allegedly failed to repay $50,000 that he had borrowed from her. Misconduct charges were filed against Stringer with the Judicial Qualifications Commission, but were dropped after he resigned and agreed to never serve as a judge again. He now draws retirement benefits of $8,069 per month. Erie County, New York Supreme Court Justice Joseph G. Makowski, 55, agreed to resign on February 20, Makowski allegedly tried to help a female attorney friend avoid a DUI charge by submitting an affidavit in her case that conflicted with witness accounts. The attorney eventually pleaded guilty to DUI and tampering with evidence; Makowski, who recanted his affidavit, was not charged. PLN previously reported on the embarrassing antics of former Mobile County, Alabama Circuit Court Judge Herman Thomas, who resigned in October 2007 after being accused of paddling or whipping male prisoners on their buttocks and making them perform sex acts. The sexual misconduct allegedly took place in a small storage room in Thomas judicial chambers, where semen stains were found. [See: PLN, Feb. 2008, p.30]. On March 27, 2009, Thomas was arrested on 57 counts that included kidnapping, sodomy, sex abuse and extortion; the charges involve nine victims, all current or former prisoners. His attorney described the prosecution as racism at its very finest. Thomas is black, as are all of the victims cited in the indictment. He has pleaded not guilty. Another Mobile County Circuit Court judge, Joseph S. Johnston, stated in a March 9, 2009 order that Thomas had used his office to threaten criminal defendants with jail time, penitentiary time and probation revocations if they did not engage in sexual acts with him. Thomas has appealed that order, saying it is based on allegations and innuendo and rumors. Former Pennsylvania Superior Court Judge Michael T. Joyce, 60, was sentenced to 46 months in federal prison and ordered to pay $440,000 in restitution on March 12, 2009, following his conviction on eight counts of mail fraud and money laundering last November. Joyce was found guilty of lying about or exaggerating his neck injuries resulting from a car accident in order to collect insurance money, which he used to buy real estate, a Harley Davidson motorcycle and a partial interest in an airplane. He reportedly played golf, went scuba diving and took lessons to obtain a pilot s license during the time he claimed he was injured. Joyce had resigned from the bench in 2007 following his indictment; he reported to prison in April Despite his conviction, he will receive an $82,000 annual pension because the insurance fraud was not related to his employment as a judge. See: United States v. Joyce, U.S.D.C. (W.D. Penn.), Case No. 1:07-cr MBC. On April 15, 2009, Christopher Sheldon, a Superior Court judge in Riverside County, California, agreed to resign and accept a public censure from the Commission on Judicial Performance. The Commission found that Sheldon routinely left court early, often before noon, and said his practice of working parttime while being paid a full-time salary is utterly unacceptable and casts disrepute upon the judicial office. Sheldon had been disciplined previously for neglecting his work duties. His resignation is effective October 23, 2009, which will give him 20 years on the job and make him eligible for a full judicial pension. Jacquelin Gibson, 57, a part-time Juvenile Court judge in Fulton County, Georgia, was arrested in May 2009 on a misdemeanor charge of battering her 92-year-old mother, Eula Mae Gibson. 6 According to police reports, the judge and her brother tried to remove Eula from the home of one of Jacquelin s sisters as part of a long-running family feud. Their mother didn t want to leave and a struggle broke out, resulting in a battery charge against Jacquelin Gibson and disorderly conduct charges against three of her family members. Eula stated that Jacquelin had injured her, and said I don t want her to go to jail, but she has to be punished. Judge Gibson has taken a leave of absence from her courtroom duties pending the outcome of the misdemeanor battery charge. She rejected a plea bargain that would have required her to attend anger management counseling. On June 18, 2009, Texas District Court Judge Woody Ray Densen, 69, was indicted on a felony criminal mischief charge for allegedly keying a neighbor s SUV. Densen, who serves as a visiting judge in the Houston area, was videotaped walking behind his neighbor s vehicle and making contact with it. A surveillance camera was set up after the SUV was repeatedly scratched, resulting in $3,000 in repair bills. Lastly, the Arizona Commission on Judicial Conduct announced on June 25, 2009 that Yavapai County Superior Court Judge Howard D. Hinson, Jr. had agreed to resign from office, effective September 30, to resolve disciplinary proceedings against him. Judges in Arizona are required to rule on matters within 60 days and certify they do not have any past-due cases in order to receive their salaries. Hinson admitted that he had issued late rulings in 25 cases and submitted inaccurate salary certifications 11 times over a three-year period. The Commission also recommended that Judge Hinson be publicly censured; the Arizona Supreme Court will decide the outcome of that recommendation. A Myriad of Judicial Misconduct In addition to the above examples of judicial misconduct, PLN has recently reported on two Pennsylvania state court judges who pleaded guilty to accepting bribes in exchange for sending juveniles to private detention facilities [PLN, May 2009, p.20]; on the indictment of several judges in Georgia s Alapaha Judicial Circuit and Fulton County on charges ranging from human trafficking to extortion [PLN, March 2009, p.48; July 2008, p.36]; and on Texas Court of Criminal Appeals judge

7 Sharon Keller, who faces ethics charges before the Commission on Judicial Conduct after she prevented attorneys for a death row prisoner from filing a last-minute afterhours appeal, resulting in his execution [PLN, July 2008, p.22] (see related article in this issue of PLN). In rare cases, judges are disciplined even when they try to improve the justice system as when St. Lucie County, Florida judge Cliff Barnes filed a mandamus petition to reduce overcrowding in the local jail. The Florida Supreme Court issued a reprimand, stating Barnes had clearly crossed the line between what is appropriate and what is not. [PLN, June 2009, p.21]. A significant problem with the current method of judicial discipline is that the disciplinary councils or other investigative bodies are usually composed of judges who pass judgment on their peers and often do so in secrecy with little or no public oversight. Such self-regulation results in a perception that complaints against judges are not taken seriously, and this perception is bolstered by the statistical outcome of judicial complaints. For example, 1,163 complaints were filed against federal judges from October 1, 2007 through September 30, 2008, and 759 complaints were concluded during that time period. The vast majority of the concluded complaints 742 were dismissed, nine were withdrawn, and only four resulted in any type of disciplinary action (including one public censure). The statistics in state courts are similar. In California, 909 judicial complaints were filed in 2008 and 892 were concluded. Of the concluded complaints, only 34 (3.8%) resulted in punishment ranging from advisory letters to removal from the bench. New York s Commission on Judicial Conduct received 1,923 complaints last year, a record number. Of those, around 3% led to discipline, including 33 letters of caution and 26 formal charges. Such infrequent punishment may embolden judges who engage in misconduct and encourage those who otherwise would not commit unethical or illicit acts. Further, many of the commissions that oversee judicial complaints can only impose discipline on sitting judges, and at most can order or recommend removal from the bench. Judges who resign or retire while facing misconduct charges can avoid disciplinary sanctions altogether, and sometimes retain full retirement benefits. Judicial immunity, a legal construct that protects judges from civil liability for acts taken as part of their judicial duties, may also contribute to misconduct because it removes a safeguard that otherwise would force judges to consider the consequences of their behavior in terms of personal accountability. Despite the sparse number of judicial complaints that are upheld, judging from the above examples it is apparent that state and federal judges are not immune to criminal acts, lapses in judgment and outright stupidity not unlike many of the defendants who appear before them in court, who are routinely convicted and sent to prison. Sources: National Law Journal, com, com, Washington Post, com, Denver Post, Still Free Houston Internet Chronicle, Associated Press, CNN, Pen The Pal Recorder, Ads Free if you have someone New York Times, New York go to Law our website Journal, and Atlanta Journal-Constitution, Pittsburgh If you do not have anyone Tribune-Review, Judicial we Business will do it for of you the for $20 55 stamps U.S. Courts (2008 Annual Report) place your ad with 4 photos. for a whole year. 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8 The cover story and a number of other articles in this issue of PLN focus on misconduct by judges. As this article goes to press the anointment hearings of Judge Sonia Sotomayor to the US Supreme Court are taking place in the US senate. Sadly, it appears she is a much more pro government judge that justice David Souter whom she is replacing and will most likely further shift the court in its anti criminal defendant and prisoner direction. For prisoners it is difficult to overstate the importance of the judiciary since, by definition, it takes a judge s sentencing to send someone to prison and a judge s order to keep someone in jail more than 48 hours. To the extent there are 2.5 million people imprisoned on any given day in the US, the vast majority of those detained are detained based on a judges order. Unlike some third world countries where the judiciary is corrupt the United States has an even more serious problem: a biased, results oriented judiciary. The corrupt judge can be bought off by the highest bidder and that has a certain egalitarian notion to it: come up with the money and you get the &! The Original & Official InmateConnections website. Write today for a free brochure and discover all we have to offer. Inmate Connections LLC 465 NE 181 st #308 Dept. PLN Portland OR Send stamp or S.A.S.E.for fastest reply. Since From the Editor by Paul Wright desired ruling. The biased judge is much more perverse. They cannot be corrupted by money because they are ideologically corrupt. In the United States today this translates into putting form over substance to get the desired result which usually translates into ruling for the government against prisoners and criminal defendants and ruling for corporations against consumers. No amount of money will change that outcome. The article by Jeffrey Deskovic illustrates this bias. Which is common in American politics as well as the judiciary. Asked about the death penalty, then candidate Barak Obama said he was opposed to executing the wrong guy. Most people are. Yet in Deskovic s case, he was not facing the death penalty but was instead factually innocent and serving a life sentence for a rape murder he had not committed. Sotomayor was among the judges who denied his appeals. Thus the wise Latina reached the same conclusion innumerable white male jurists have reached: ruling for criminal defendants, even factually innocent ones is bad for your career and keeping them locked up can only advance it. Even if they are innocent. Sotomayor s strongest supporters, senators Leahy and Schumer duly note she rules for the government and upholds 98% of criminal convictions and in federal immigration asylum cases by immigrants seeking to avoid deportation to countries where they face the likelihood of murder and torture, she ruled in favor of the government 83% of the time. These are her strong points pushed by her supporters which fully illustrate the bi partisan, consensus nature of America s criminal justice policy. Texas judge Sharon Keller s disciplinary proceeding over closing the courts in Texas to ensure a death row prisoner was denied the opportunity to seek a stay of execution is another example of this results oriented judiciary. Of course, there are many fine state and federal judges serving on the bench in the US. While the notion of an independent judiciary is fine, the reality is that faced with criticism or pressure many judges quickly fold and provide expedient rulings rather than constitutional ones. Judges who are ready to apply the constitution first and rule accordingly are few and far between. The reverse process is what occurs: figure out the desired outcome and go from there. Heroic giants of the American judiciary like 8 Judge William Justice who desegregated Texas schools and brought Texas prisons into the 19 th century; circuit judge Stephen Reinhardt and justices Earl Warren and William Brennan are among those who come to mind as examples of judges who analyze[d] the constitution and let the chips fall where they may. Often to the dismay of those who appointed them to the bench. Law professor and former National Lawyers Guild president Michael Avery once commented that any judicial nominee or candidate should have to pass what he called the Kleenex test. Which meant that as a lawyer they had to keep a box of Kleenex on their desks for their clients to use who would cry in their offices because they were too scared, too brutalized, too marginalized and disempowered and desperately needed the representation of such a lawyer. Presently, anyone who can pass the Kleenex test has little chance of being appointed to the judiciary. In the US today the quickest and surest way to a judgeship is via the offices of prosecutors and government agencies. Tellingly, being or having been a public defender, legal aid, personal injury or civil rights lawyer is deemed a disqualification. Thus the only type of public service that counts is service to the repressive organs of the state or its government bureaucracy. Government lawyers like Jay Bybee who drafted the torture memos justifying the torture of prisoners at Guantanamo have been rewarded with judgeships (he sits on the 9 th circuit). Justices Sotomayor and Alito are among those who rose through the judicial ranks after stints as prosecutors. Why are there no public defenders or criminal defense lawyers on the Supreme Court? And very few in the lower judicial ranks? A long time ago I observed that the only people who like the rule of law are the weak (presumably why court petitions are called pleadings ); the strong hate it and see it as a constraint on their power. Since the powerful are the ones who appoint or elect the judges it is not surprising that they seek out those who will defer to that power and maintain the status quo. A strong judiciary should be the bulwark that protects the disempowered; all the often it is merely how the wealthy and the state exercise repressive power whether it means foreclosing on homes and farms, ensuring impunity for abuse and imprisoning millions.

9 FedCURE Entitled to Fee Waiver for FOIA Request by Brandon Sample On March 19, 2009, U.S. District Judge Reggie Walton granted a motion for summary judgment filed by FedCURE, a non-profit organization that advocates for federal prisoners and their families, in a suit filed under the Freedom of Information Act (FOIA) against the Bureau of Prisons (BOP). In 2005, FedCURE sent a FOIA request to the BOP for various records related to the BOP s ion spectrometry program. For years, federal officials used ion spectrometry equipment to detect drugs on visitors and BOP prisoners. The devices have since been discontinued following concerns about their accuracy [See: PLN, Feb. 2009, p.11]. BOP demanded that FedCURE pay $3,976 in search and copying fees before processing the FOIA request. In response, FedCURE asked for a fee waiver. FedCURE argued that it was a noncommercial scientific institution and a representative of the news media by virtue of the newsletter it published. Additionally, FedCURE asserted that disclosure of the requested records was in the public interest and that it intended to publish the ion spectrometer information in its newsletter and on its website. The BOP denied the request for a fee waiver, prompting FedCURE to file suit. On cross-motions for summary judgment, Judge Walton agreed that FedCURE was entitled to a fee waiver. The BOP had argued that the requested information related to its ion spectrometry program would only be conveyed to a small group of people if provided to FedCURE. This, according to the BOP, demonstrated that disclosure of the records was unlikely to be meaningfully informative and unlikely to contribute to increased public understanding of the federal government. Judge Walton disagreed. Information disseminated by FedCURE via its website, newsletter, and chat room will inevitably trickle down from those who have sent inquiries to others who have an interest related to prisons, he wrote. Next, the BOP challenged FedCURE s ability to disseminate the requested information to a broad audience. According to the BOP, FedCURE s website was a passive distribution source, and its newsletter was infrequently published. Relying primarily on his decision in v. Lappin, 436 F.Supp.2d 17 (D.D.C. 2006) [PLN, Sept. 2006, p.15], Judge Walton concluded that FedCURE s website and newsletter reached a wide enough audience. In, the court granted a fee waiver to PLN after finding that its monthly publication at that time reached some 3,600 subscribers and 18,000 readers. Numbers which have increased substantially since evidence was submitted in that case in The BOP attempted to distinguish the ruling from FedCURE s request for a fee waiver, arguing that PLN was printed monthly whereas the FedCURE newsletter was published infrequently. Judge Walton found this distinction unpersuasive, holding that while FedCURE may publish infrequently, that fact does not prove that FedCURE cannot disseminate information to a reasonably broad section of the public. Further, Judge Walton concluded that FedCURE had received some 250,000 visitors to its website since 2007, making it and the organization s newsletter effective means to distribute the requested information to the public. Finally, the district court held that the dearth of information about the BOP s ion spectrometry program already in the public sphere militated in favor of a fee waiver. Accordingly, FedCURE s motion for summary judgment was granted and the BOP s cross-motion was denied. See: Federal Cure v. Lappin, 602 F.Supp.2d 197 (D.D.C. 2009). 9 LEARN TO PROTECT YOUR RIGHTS YOU HAVE A RIGHT TO Adequate medical care Protection from assault Humane living conditions Safety from officer abuse Learn how to defend your basic human rights with the comprehensive litigation guide, Protecting Your Health and Safety, 2nd edition, written specifically for prisoners who are unable to receive help from a lawyer. Written by Robert E. Toone Edited by Dan Manville A Project of the Southern Poverty Law Center* COST $16 total ($10 + $6 shipping/handling) FREE shipping/handling for orders from over $50 ORDER A COPY Send a check or money order to: 2400 NW 80th Street #148 Seattle, WA (206) Be sure to include your name, identification number (if any), and mailing address. We also accept VISA and Mastercard. If using a credit card, please include the type of card (VISA or Mastercard), card number, and expiration date. This book does not deal with legal defense against criminal charges or challenges to convictions that are on appeal. Edition last revised in *Please do not send orders to the Southern Poverty Law Center.

10 Killings, assaults and other acts of violence are becoming more widespread in the federal Bureau of Prisons (BOP), as the prison population increases and staff-to-prisoner ratios decline. Fifteen prisoner-on-prisoner BOP homicides occurred in 2008 compared with 12 in Serious assaults on staff increased to 82 in 2008 from 72 in 2007, following a decline in previous years. The BOP operates 115 facilities that house over 205,000 prisoners. Most of the violence is relegated to U.S. Penitentiaries (USPs), which typically hold high-security offenders serving lengthy sentences. On April 20, 2008, for example, a massive 30-minute riot at the USP in Florence, Colorado broke out in the recreation yard. The incident began after white supremacist prisoners celebrating Adolf Hitler s birthday began yelling racial epithets at black prisoners. The white supremacists were drinking hooch, a form of homemade wine, and were armed with rocks and improvised weapons. Approximately 200 prisoners were involved in the melee. To quell the riot, guards fired more than 200 M-16 rounds, 300 pepper balls and almost a dozen tear gas canisters, plus sting grenades. Two prisoners, Brian Scott Kubik and Phillip Lee Hooker, were shot to death by tower guards. Although the BOP initially reported that five other prisoners had been hurt, it was later learned that 30 prisoners and one staff member were injured during the incident. Frank Sims, a prisoner allegedly involved in the riot, described the scene on the yard as lil Baghdad. Ken Shatto, president of the American Federal of Government Employees Local 1302 (AFGE), which represents BOP workers at the prison complex, remarked It s the craziest thing in 15 years I ve seen with the Bureau. Outsiders like Mark Potok of the Southern Poverty Law Center, an organization that tracks hate groups, were surprised that white supremacist prisoners were allowed to congregate in the yard that day. I m not an expert in keeping prisons calm, but it certainly does seem like dangerous business to allow groups of white supremacist criminals to congregate on Hitler s birthday, said Potok. The truth is, it is an iconic day in the white Violence on the Rise in BOP Facilities by Brandon Sample supremacist calendar. Leann LaRiva, a spokesperson for USP Florence, said prisoners are not separated by race on Hitler s birthday or any other anniversary. We don t discriminate on race or ethnicity or segregate, she said. Not even, apparently, to prevent riots that result in prisoners being shot to death. Union officials have long called for increased staffing to help prevent such violent outbreaks and, of course, to boost their membership ranks. In April 2008, just weeks before the riot occurred, Phil Glover, a legislative coordinator with the AFGE, testified before Congress about rising levels of violence in the BOP. Glover blamed the violence on insufficient staffing and resources. According to Glover, the BOP has filled only 87 percent of staffing positions compared to 95 percent during the 1990s. He stated that staffing levels in federal prisons may drop as low as 76 percent if budget shortfalls continue. Compounding this staff shortage, BOP facilities are 36 percent over capacity systemwide. The BOP has recognized the potential for increased violence due to staffing deficiencies. In a March 2008 memo, prison officials estimated that a projected $289 million budget shortfall could force the cutting of guard positions to the point where safety and security of staff and inmates could be in jeopardy. Immediately following the USP Florence riot, then-u.s. Senator Ken Salazar contacted Attorney General Michael Mukasey and requested that additional guards be sent to the facility. Salazar has also called on the BOP to release reports about the riot to the public. The people of Colorado, especially those in the communities surrounding the USP, deserve the assurance that the BOP is taking the steps necessary to improve security at the facility and prevent terrible incidents like this in the future, Salazar wrote to BOP Director Harley Lappin. Despite Salazar s requests, the BOP refused to release details regarding the riot, citing an ongoing investigation. The FBI is also conducting a review. Amazingly, just three months after the riot, the warden of USP Florence, Sara Revell, received an Excellence in Prison Management award. According to Felcia Ponce, a BOP spokesperson, the award recognizes outstanding contributions by a warden in the overall management of staff, inmates, and general population. The BOP did not comment on why Revell was given the award following a major riot. On August 10, 2008, just weeks after Revell was recognized for her excellence in prison management, USP Florence was again placed on lockdown due to a prisoner-on-prisoner homicide. Violence at USP Florence has even extended to the visiting room. In November 2008, days after visitation was restarted at the institution, a prisoner attacked two visitors. An unidentified BOP guard claimed the prisoner tried to stab his wife and mother-in-law. It was some type of paper, folded or rolled really tight with a blade in the end of it, the guard said. He managed to cut his wife s neck and then tried to cut up the mother a little bit. The visitors were taken to a hospital and released. The BOP is in the process of separating outside recreation yards at all USPs into smaller, more manageable areas. While the timing of the change may seem related to the Florence riot, BOP officials said it was part of a nationwide move following the June 20, 2008 murder of Jose Rivera, a guard at USP Atwater in California. Rivera was stabbed at least 28 times with an 8 ice pick-like weapon; he was unarmed, had no protective equipment, and other prison employees were delayed in coming to his rescue due to a locked door. The two prisoners accused of stabbing Rivera to death, Jose Cabrera Sablan and James Ninete Leon Guerrero, who are both serving life sentences, are scheduled to go to trial on murder charges in September They face the death penalty. USP Atwater was placed on lockdown for three months after Rivera was killed. Once the lockdown was lifted, the prison was plagued by numerous fights including a dozen stabbings over a oneweek period which resulted in another lockdown. In November 2008 the BOP replaced Atwater warden Dennis Smith, who was transferred to a medium-security facility. A subsequent BOP report found that weapons were commonly available at USP 10

11 Atwater and prisoners were able to get drunk on homemade alcohol. The prisoners who killed Rivera were reportedly drunk at the time. Between 2005 and 2007 the number of prisoner-on-staff assaults at Atwater had quadrupled from 13 to 57 per year. This included assaults involving prisoners spitting or throwing urine on guards, and attacking them with fists or food trays. Half of the reported assaults took place in the facility s Special Housing Unit. The AFGE sharply criticized the BOP over Rivera s murder, calling for the resignation of top BOP officials and demanding that prison guards be provided with stab-proof vests and Tasers, pepper spray and other self-defensive equipment. We have lost all faith in the BOP management, stated AFGE president John Gage. It s incredible to us that the Bureau is making this a labor dispute, that they refuse to give these basic, commonsense tools to our officers. We feel, in the Rivera case, if these simple things we are asking had been granted, he would be alive today. Violence in the BOP has not been confined to USP Florence and Atwater. USP Pollock in Louisiana was the leader in prisoner-on-prisoner homicides in Two prisoners, Tyrone Johnson and Derrick Sparks, were killed in April 2007 after being stabbed with homemade weapons. Three months later another two prisoners were stabbed in the stomach. In November 2007, prisoners William Bullock and Donald Till were murdered by other prisoners. USP Pollock rang in the new year in January 2008 with the killing of prisoner Peter Avalos Gutierrez, 55, barely a month after he was transferred to the facility. He was stabbed to death with a shank. Other institutions with high levels of violence include USP Beaumont, better known as Bloody Beaumont. In November 2007, prisoner Gabriel N. Rhone was stabbed to death; a guard received 13 puncture wounds during the attack, which involved two other prisoners. USP Lee is another honorable mention. On September 30, 2008, prisoner Quentin Corniel died after sustaining multiple stab wounds. He was less than a year away from his release date. The Metropolitan Correctional Center (MCC) in Chicago, Illinois; the Federal Correctional Institution (FCI) in Three Rivers, Texas; and the FCI in Phoenix, Arizona round out the top-ranked BOP facilities for levels of violence. Jason Katz, serving a nine-month sentence, was beaten to death at the MCC in March 2008 by fellow prisoner Jason Tolen, 20, who was indicted on seconddegree murder charges. At FCI Three Rivers, a prisoner was killed during a fight in March And a brawl involving three prisoners at FCI Phoenix in January 2008 resulted in one prisoner suffering stab wounds to the head. Other BOP facilities have experienced their own share of violence. On January 25, 2009, a large-scale fight at Federal Correctional Complex (FCC) Coleman, located about 50 miles northwest of Orlando, Florida, left eight prisoners hospitalized with stab or gunshot wounds. One of the prisoners was shot by guards to prevent possible loss of life, stated Rita Teel, a BOP spokeswoman. Another major fight broke out at the facility in March 2009 that involved dozens of prisoners and left 14 prisoners with serious injuries. Eleven were airlifted to hospitals. FCC Coleman was placed on lockdown, and the incident is under investigation. It was a busy day, to say the Law Office of Andrew J. Schatkin 350 Jericho Turnpike Jericho, NY Phone: (516) Fax: (516) Author of five book chapters on Criminal Law and other topics. Author of 150 legal articles. Who s Who in America. 25 years experience, nationwide. Appeals, Trials, Habeas Corpus, Sec Prisoner s Rights Suits, including failure to provide medical care and police beatings, Parole Hearings. 11

12 Violence in BOP Facilities (cont.) least, said Jim Judge, director of Lake- Sumter Emergency Medical Services. Two separate fights at the USP in Tucson, Arizona on May 28, 2009 sent three prisoners to the hospital with stab wounds. Most recently, FCI Victorville was placed on lockdown on June 6, 2009 following an attack by prisoners in which four staff members suffered minor injuries, and on June 11 a prisoner was shot by guards at USP Terre Haute during a fight with another prisoner on a recreation yard. Both prisoners were hospitalized. On June 18, 2009, the U.S. House of Representatives passed an appropriations bill that includes $71 million for hiring 745 new BOP guards; the bill still must be approved by the Senate. It is hoped that an increase in staffing levels will reduce violence in federal prisons. The BOP has taken additional steps to confront increasing levels of violence, including transferring high-security offenders to other facilities and prosecuting prisoners involved in fights. In October 2008, the BOP created a new security level dangerous prisoners at USP Atwater will be sent to USP Lewisburg in Pennsylvania, a high-security prison. What we ve seen is some very positive steps and progress. We are going to see a change in the entire federal penitentiary system, stated U.S. Rep. Dennis Cardoza, after touring Atwater. Rep. Cardoza introduced federal legislation in 2008 that would have required the BOP to provide stab-resistant vests to all federal prison guards, who would have to wear them while on duty (H.R. 6462). The bill, titled the Jose Rivera Correctional Officer Protection Act, failed to pass; however, the BOP has been distributing vests to BOP staff who request them. In regard to prosecutions, in October 2008 two FCC Terre Haute prisoners, Michael S. Vaught and Whitney H. Smith, were indicted on charges of assault with intent to commit murder and assault resulting in serious bodily injury, resulting from a May 27, 2008 razor attack on another prisoner. In August 2008, FCC Coleman prisoners Gerardo Martinez and Osbaldo Farias were charged with conspiracy to commit murder in connection with the October 2007 death of Orlando Yazzie, who was beaten and stabbed to death in a recreation cage. On June 4, 2009, USP Big Sandy prisoner Manuel Cardosa, 28, was convicted of attacking and stomping fellow prisoner Marvin Fontenette, leaving him paralyzed and half-blind. While prison officials may not be able to prevent violence at BOP facilities, that doesn t stop them from prosecuting violent offenders after the fact. Meanwhile, in June 2009, the mother of slain prison guard Jose Rivera filed a lawsuit against federal officials, including BOP Director Harley Lappin and former Atwater warden Dennis Smith. The suit alleges that BOP officials willingly and knowingly participated in the creation of dangerous conditions that resulted in [Rivera s] death. See: Rivera v. Lappin, U.S.D.C. (E.D. Cal.), Case No. 1:09-cv LJO-SMS. According to Mark J. Peacock, the attorney representing Rivera s family, Officer Rivera s death highlights the complete and utter breakdown of the prison s management in protecting their employees. This can t be allowed to continue. The same can be said about the inability of BOP officials to protect prisoners from increasing levels of violence, which also cannot be allowed to continue. Sources: Colorado Independent, Rocky Mountain News, Denver Post, Associated Press, Channel 13 KRDO, Corpus Christi Caller-Times, Beaumont Enterprise, Arizona Republic, Chicago Tribune, Bristol Herald Courier, KSWT, Judge Sonia Sotomayor Denied My Appeal and I Spent 16 Years in Prison for a Crime I Didn t Commit My name is Jeffrey Deskovic. At age 17, I was wrongfully convicted of murder and rape, a conviction that was based upon a coerced false confession, the fabrication of evidence, prosecutorial misconduct, and fraud by a medical examiner. I was cleared 16 years later almost three years ago when DNA evidence proved my innocence, while also identifying the real perpetrator, who subsequently confessed to the crime. Since my release, I have made it my life s mission to battle against wrongful convictions and fight for legislation that would minimize the chances of what happened to me happening to someone else. It is this fight that compels me to speak out about Supreme Court nominee Sonia Sotomayor. Before I was exonerated, I sought out every legal avenue I could to win my freedom. I defended my innocence before the New York Appellate Division, raising such proof as the fact that the physical evidence found did not match me and arguing that the police violated my rights by coercing a false confession from me at the age of 16. The court ruled against me 5 to 0, concluding that there was nothing wrong with my interrogation and stating that there was overwhelming evidence of guilt, despite the fact that there was no by Jeffrey Deskovic evidence beyond my forced confession. In truth, the DNA and the hairs found on the victim s body were evidence of my innocence. When my lawyer was denied a chance to reargue the case on the grounds that the court s decision ran counter to the law and to the facts, we moved to the Court of Appeals, the highest court in New York. I filed a Writ of Habeas Corpus, in which I argued that my conviction was a violation of the U.S. Constitution. The year was The year before, Congress had passed Bill Clinton s Anti-Terrorism and Effective Death Penalty Act (often called AEDPA in legalese), which mandated that from then on, all state prisoners would have only one year to appeal to a federal court after being denied an appeal by their state s highest court. As a result, there was some confusion in the federal courts regarding the filing procedure; it was not clear how this new law would apply to cases already in the system. Different jurisdictions were answering the question in different ways; my lawyer called the court clerk and asked whether it was enough that my petition be post-marked on the due date, or if it had to physically be filed and in the building on the due date. The court clerk told my attorney that it was enough that it be postmarked. That information turned out to be false.

13 Consequently, my petition arrived four days too late. Westchester District Attorney Jeanine Pirro seized on the late petition, arguing that the court should dismiss my case without even considering my innocence claim. The court agreed. I then appealed my case to the 2nd Circuit. It was there that I first met Judge Sonia Sotomayor. My lawyer gave three reasons why Judge Sotomayor and her colleague should overturn the procedural ruling: 1) Upholding such a ruling would cause a miscarriage of justice to continue; 2) Reversing the procedural ruling could open the door to more sophisticated DNA testing; 3) The late petition was not my fault or my attorney s. To our dismay, Judge Sotomayor and her colleague refused to reverse the ruling. The alleged reliance of Deskovic s attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance, they wrote. Similarly, we are not persuaded that... his situation is unique and his petition has substantive merit. A second appeal to Sotomayor s court resulted in the same decision. The U.S. Supreme Court refused to hear my case, and I remained in prison for six more years. When I first learned that Judge Sotomayor was nominated to the U.S. Supreme Court, I was immediately alarmed. What would it mean for other people who were wrongfully convicted? Judge Sotomayor put procedure over innocence in my case. Could she be trusted not to do so again in the future? Could she be counted on to correct injustices when the facts indicated and/or the legal arguments could demonstrate that a trial was unfair? Judge Sotomayor condemned me to serve a life sentence for a murder and rape that I did not commit. That other innocent people could be denied relief based on procedural technicalities is no mere possibility. Take the case of Troy Davis, who faces execution in Georgia despite overwhelming proof of his innocence proof that has never been allowed in a courtroom. Consider, too, the recent U.S. Supreme Court ruling in Alaska v. Osborne [129 S. Ct (U.S. 2009)], in which the U.S. Supreme Court stated that no prisoner has a constitutional right to DNA testing even when such testing could demonstrate innocence. That decision came down to a 5 to 4 vote; if Judge Sotomayor had been on the court, can anybody say with confidence that she would have voted in favor of DNA access? There are human consequences to these decisions. I can still see the prison cell, the barbed wire, the isolation from my family, the depression, helplessness, frustration, abuse by prison guards, the constant physical danger in prison, no opportunities to build for my future, missing births, deaths and holidays. We need to awaken this country to the role that judges play in perpetuating wrongful convictions by putting procedure over innocence, by putting finality of conviction over accuracy, and by rubber stamping appeal denials regardless of whether a trial was truly fair. Judge Sotomayor will appear before the Senate for her confirmation hearing. Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case condemning me to a life sentence based on procedure in the face of an airtight innocence claim should be part of the discussion. I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor s putting procedure over innocence. Thus far, however, I have received no response from either side on Capitol Hill. It is deeply dismaying that neither the Republicans nor the Democrats have introduced my case to the national conversation about Judge Sotomayor. Do people remember Anita Hill? As serious as her allegations of sexual harassment were, I would think that my serving time in prison wrongfully and being condemned to a life sentence for a crime that I was innocent of would be even more serious. Why does Judge Sotomayor continue to ignore this story? Does President Obama agree with Judge Sotomayor s ruling? Does he think that ruling served justice? Is that the type of empathy he wanted? I lost 16 years of my life. It seems evident that politics is trumping justice; that I am once again being wronged by the system. This article originally appeared on AlterNet ( on July 10, It is reprinted with permission from the author. MARIAN HOY, Consultant Making Sure Voices of the Innocent Are Heard Let us help you by providing accurate, quick and economic information on whether or not you have a case against the arresting agency and arresting officer. Contact us by or mail and briefly tell us the charges against you and the circumstances of the arrest. Include a phone number of a family member who you give permission to work with us. We will contact that person within a week of receipt of your letter. PO Box 833, Marble Falls TX CALIFORNIA LIFER NEWSLETTER CLN: A comprehensive newsletter mailed every 6-8 weeks. State and federal cases, parole board news, statistics, legislation and articles on prison, parole and correctional issues of interest to inmates and their families. CLN also provides services such as copying and forwarding federal and state cases, articles and news and materials available on the Internet. SUBSCRIPTIONS: Prisoners: $18 (or 60 stamps) per year (6 issues minimum). Free persons: $25. CLN, Box 687, Walnut, CA 91788

14 Seventeen year old David Simmons and his fourteen year old girlfriend began a sexual relationship which continued after they turned 18 and 15, respectively. The relationship ended, however, on September 27, 2006 when the girl s angry parents had Simmons arrested on suspicion of rape and sodomy. On October 5, 2006, Jefferson County, Oregon deputy district attorney Steve Leriche took the case before a grand jury, seeking to charge Simmons with six felony sex crimes, carrying substantial prison time. Finding insufficient evidence of a criminal offense, the grand jury refused to indict Simmons. Grand Jury Foreman James Green checked Not a True Bill on the indictment and returned it to Leriche. Leriche, presiding Judge Daniel Ahern and Simmons s defense attorney, Jennifer Kimble, all failed to notice that the grand jury refused to indict Simmons. Such a failure is just extraordinary, said University of Oregon law school dean Margaret Paris. Five days after the grand jury s decision, on October 10, 2006, Simmons pleaded guilty to two charges third degree rape and third degree sodomy. Nine days later, on October 29, 2006, Simmons was sentenced by Judge George Neilson, who also missed the grand jury s refusal to indict. At sentencing, Simmons apologized to his former girlfriend s family and was ordered to serve 30 days in jail, five years on probation and register as a sex offender. That would have been the end of the story if Grand Jury Foreman Green had not stumbled onto a story about Simmons s sentence in the local newspaper. Shocked, Green called Leriche on October 31, Didn t you read the indictment? Green asked. We didn t indict the kid. By then, Simmons had served his entire jail term, but Leriche and Kimble ran frantically to Judge Neilson for damage control. Kimble joined the prosecution s motion to vacate the conviction and Neilson quickly granted it. Mr. Simmons, this is an experience I ve never had before in 27 years, said Neilson. What transpired here in essence is a nullity. It will be treated as if it never Oregon Prosecutes Teen to Avoid Liability; Bizarre 2 ½ Year Legal Battle Ends by Mark Wilson happened in the sense of the law. Still, Neilson warned Simmons that he could be prosecuted again. Simmons s attorney admitted her role in the blunder. I assumed and that was my error in this case that because it had gone through the district attorney, and he d signed it, and gone through the judge, that someone would have looked at it, or the grand jury would have mentioned, By the way, we didn t indict this person, said Kimble. But in the young man s case, none of that happened. Recognizing the egregious nature of the error, which causes Simmons to spend additional days in jail when he should have been released on October 5, 2006, Kimble alerted Simmons that he may have potential legal claims against her, the prosecutor, the judge and the county jail. My thought at the time would be, they would apologize to him and pay him some money, said longtime Portland criminal defense attorney Laura Graser. Believing, however, that the best defense is an aggressive offense, the State went after Simmons like a rabid pitbull. On November 30, 2006, the prosecution filed six new charges against Simmons: four counts of contributing to the sexual delinquency of a minor and two counts of third-degree sexual abuse. Leriche admitted that he filed only misdemeanor charges to avoid being barred by a grand jury not-true bill. I can t believe they prosecuted him again, said Graser. Simmons s new defense attorney, Steven Richkind, says the new charges are a blatant attempt to avoid responsibility for how badly they screwed it up. He notes that this was a failure on the part of the prosecutor, the judge and the defense attorney. It was a failure to do the most fundamental thing, to read the charging instrument. The new charges are nothing more than an underhanded tactical move, argued Richkind. Once he s convicted, their argument in the civil case will be, He spent 30 days in jail, ladies and gentlemen, he has no damages because he would have served 30 days anyway, Richkind suggests. They re using the criminal proceeding to minimize their liability in a civil action. Every citizen in the State should be outraged. On June 1, 2007, Richkind asked the Oregon Supreme Court to stop the new prosecution but the Court refused to hear the case on July 31, Still, Richkind insists the new charges subject Simmons to double jeopardy. They punished him once by putting him in jail for 30 days. The constitution says you punish him once and you re done. Oregon Attorney General Hardy Meyers and his staff were apparently reading a different constitution. In a 19-page June 2007 opinion, Meyers argued that since all the previous proceedings were a legal nullity, in the absence of a legitimate indictment, Simmons hadn t really been convicted and was, therefore, vulnerable to face charges again. Adding insult to injury, the State blames Simmons for the mess. Although he blames the prosecutor and the trial court for failing to notice that the indictment was not a true bill, the record show that neither he not his attorney noticed that defect either, wrote Meyers. Thus, he is equally responsible for the fallout. Apparently, the issue became a bit too hot for Leriche and the other county prosecutors. The County asked the State Attorney General s office to take over the Simmons prosecution, admitted Deputy Attorney General Peter Shepherd. Asked if the State is attempting to minimize its liability, Shepherd declared, That s not true. Yet, he concedes that prosecutors are anxious to convict Simmons. There has been no conviction of record, notes Shepherd. One function of criminal law is to affix responsibility in an authoritative way. That hasn t happened yet in this proceeding. The irony of that statement offends Richkind. That s the part that s most disturbing, he says. When the ones who point the fingers have the fingers pointed at them, they duck their responsibility. They can t live by their own standards. And that goes to the highest level, to the Oregon attorney general and the state Supreme Court. On March 20, 2008, Richkind filed a federal civil rights action on behalf of Simmons, seeking to stop the new prosecution on double jeopardy, fundamental fairness and due process grounds and 14

15 seeking $3.5 million in economic and punitive damages. While the Attorney General scoffed at the suit, many others insisted that Simmons should prevail. As far as a judgment being entered and time served, that would probably prohibit you from prosecuting again, suggested Portland defense attorney Richard Wolf. This young man has been put through jeopardy. I don t know that they can unring that bell, agrees Dean Paris. This is very, very unusual. It s really an extraordinary and fascinating case. But the State ultimately did unring that bell. In December 2008, a federal judge dismissed the suit, though Richkind vowed to appeal to the Ninth Circuit Court of Appeals. On December 16, 2008, Richkind was again in state court arguing that the new prosecution should be dismissed. How can the government do this to him and say it s a do-over? he asked Lane County Circuit Judge Karsten H. Rasmussen. Richkind argued that the new case is vindictive and retaliatory and that officials filed it to cover their tracks in the first case. Assistant Attorney General Darrin E. Tweedt disagreed, however, claiming that there was no proof of retaliation, especially given that the new charges were less severe than the original ones. Rasmussn took the matter under advisement, stating that he would decide whether to dismiss the case in early January On January 5, 2009, however, Richkind and prosecutors submitted a plea deal to Rasmussen. The agreement calls for Simmons, who is now living in Texas, to plead guilty to harassment but not serve more jail time, probation or be required to register as a sex offender. The State also agreed not to block any attempt by Simmons to have his record of arrest or conviction expunged if he does not have contact with the victim or incur any felony or misdemeanor convictions for three years. It was a good outcome for my client, said Richkind, noting that it will finally be over after 2 ½ years. The State just had to have the last word. Basically, our position is there was no evidence of vindictiveness or retaliatory prosecution here, said Attorney General Spokesman Tony Green. In fact, it was a simple mistake and the evidence supported that a crime did occur. Translation: Whew! Source: The Oregonian. Winning Strategies for Habeas Corpus & Post- Conviction Relief *NEW* 2008 Edition A current up to date, virtual law library in one easy-to-reference book, uses a Map Id sys. 400 subjects and 430 pages. Includes Sixth Amendment, ineffective assistance of counsel, denial of counsel, presumed prejudice, pretrial preparation, duty to investigate, conflict of interest, plea bargain process, co-defendants, forensic investigations, jury instructions, closing arguments, Federal habeas court 2254 & 2255, discovery, evidentiary hearing, sentencing, USSG, Default Cause & Prejudice, exhaustion, Immigration parole, Coram nobis, Retroactivity, and more. TO ORDER Prisoners send $59.50; all others $74.50 Includes shipping & handling, and tax. No personal checks, institution check OK; other money orders OK. Send to. FAST LAW PUBLISHING ASSOCIATES P.O. BOX 1324 BURLINGTON, WA When a diabetic patient is serious and informed about his disease, health staff have to be on their toes. They pay more attention. 15

16 A Bridge Between The Ivy League And The Jailhouse: An Interview with Brett Dignam, Clinical Professor of Law and Supervising Attorney at Yale Law School Thirty years ago, Brett Dignam would not have believed she would spend her career as an attorney advocating for prisoners rights. Dignam s passion at the time was performance, and she was deeply interested in teaching children s theater. Law school was something I did so that I would have enough credibility to start my own theater, she explains. That changed, however, in the early- 1980s when she needed a part-time summer job and was hired by attorney Dennis Curtis, who was then heading up a law clinic at the University of Southern California. Dignam s task was to manage the cases that students had started in the spring. Her first client was serving a federal sentence, having already served state time. During the first visit, I read his handwritten petition for a writ of habeas corpus and was very impressed, she recalls. He had become a published playwright and poet while inside. We were almost exactly the same age but we had grown up in different neighborhoods. Dignam s career in prisoners rights advocacy was sealed when she asked Curtis -- who had left a small Washington, D.C., boutique law firm after arguing in the Supreme Court a few years out of law school -- why he had left that practice. It was simple: he liked his clients more and enjoyed the work. He was correct, says Dignam. The work is compelling. The clients are remarkably self-reliant -- they have no one else most of the time, very knowledgeable about the system and excellent teachers. Plus, you get to talk about the Constitution and are forced to come up with creative legal theories in order to avoid terrible precedent. Since 1992, Dignam has been on the faculty at Yale Law School, where she is Clinical Professor of Law and Supervising Attorney. Dignam and her students have helped prisoners in issues of medical claims, claims of sexual assault, felon disenfranchisement, challenges to sex offender classification, and cross-gender pat searches through three important clinics -- Prison Legal Services, Complex Federal Litigation, and Supreme Court Advocacy. by Todd Matthews PLN spoke with Dignam about her interest and work in prisoner rights issues, what she hopes to achieve at Columbia, and her thoughts on young people pursuing this field of law. PRISON LEGAL NEWS: Are there two or three cases, decisions, or areas of reform you were involved in as a private practice attorney that would be considered landmark or significant? BRETT DIGNAM: In private practice, no. That is the reason I left that practice. I did work for 20 months or so for a small division at the Department of Justice, Criminal Appeals and Tax Enforcement Policy. Eight lawyers from that section traveled around the country arguing criminal tax appeals. We had interesting initiatives under the then new Money Laundering statutes and did a bunch of motor fuel excise tax cases involving the Russian mob on Long Island. We prosecuted high-level oil officials who learned what conspiracy was all about. The power of the prosecutor to confess error is a great tool. The ability to say no to ambitious politicians who want to use the tax law to further their own careers through high-profile indictments was also interesting. The chief of that section was an old school Bobby Kennedy hire who understood that the goal of the department is justice. PLN: In 1992, you joined Yale Law School as an associate clinical professor. Most notably, you have supervised law students who have assisted prisoners at the Federal Correctional Institution (FCI) for women in Danbury, Conn. Describe the program and the work students do on behalf of prisoners. DIGNAM: Denny Curtis and Steve Wizner were hired in 1969 and 1970 by rebellious students who wanted to begin helping people while in law school. They created a clinic that focused on federal parole. The students were disturbed by the unfettered exercise of discretion and advocated for more structure. Congress passed the Parole Reorganization Act creating parole guidelines that led to the Sentence Reform Act and federal sentencing guidelines. Careful what you wish for. After parole disappeared, we broadened the work we did for inmates. In 1994, Danbury became an institution for women and we saw a dramatic change in the issues. Sexual assault dominated our docket. Adrian LeBlanc, in her wonderful book Random Family, describes one of the early cases we had. A woman was impregnated with twins by her work supervisor. We had been contacted by her defense attorney and asked to help get her an abortion. She changed her mind and we represented her on health care issues and later in a Federal Tort Claim and Bivens action. Although the local U.S. Attorney s Office has prosecuted numerous staff members, the contact has been outrageous. We have also done a number of immigration and medical cases. PLN: How do prisoners learn about the program? DIGNAM: We have an excellent relationship with the inmate librarian who keeps applications for our assistance in English and Spanish -- Danbury is also an immigration site. We have done know your rights power point presentations and produce packets on topics of interest. A former warden allowed us to meet with her inmate advisory board; those women identified topics of particular interest and we developed information. PLN: How many students are helping prisoners at any given time? DIGNAM: Usually around 20 students in my clinic. There are other clinics who focus on immigration, detention and national security issues. At times, students from those clinics also represent prisoners. PLN: What issues do they address? DIGNAM: Medical issues have been a big area recently. Sexual assault is a priority as well. Unfortunately, issues involving children in other states are difficult for the students to handle effectively and are often a high priority for the women. Occasionally, we will handle a particularly difficult parole or habeas issue, but Connecticut defendants have a right to appointed counsel through habeas appeal. PLN: Are there one or two cases stu- 16

17 dents have been involved in over the years that have had significant benefits to FCI prisoners? DIGNAM: Peddle v. Sawyer got a lot of attention. The perpetrator was perhaps uniquely bad -- arrested for masturbating in front of a gym with a glass wall and returned to work in the trauma unit. We brought a claim under Violence Against Women Act which allowed us to describe the conduct as violence. We were appointed to represent a woman in a habeas challenging cross gender pat searches. Unfortunately, it had fatal Prison Litigation Reform Act exhaustion problems but the judge allowed us to make a full record, kept the preliminary injunction prohibiting the searches in place and held her decision until our client was released. We created a record and conducted discovery that will be very helpful in a case we have now litigating the same issue on behalf of a Muslim woman. PLN: I m interested in what the future looks like for attorneys representing prisoners. I m guessing there s a bigger draw to pursue corporate law or another field. Yet, there also seems to be more opportunities at the university level for students to get involved -- particularly through innocence projects and prison law clinics -- than existed 20 years ago. DIGNAM: My anticipated move to Columbia has sparked a lot of concern among the students about the continuation of the prison clinic at Yale. This concern was raised during the Liman Public Interest Conference last March as both Denny Curtis and Steve Wizner were honored (both are allegedly retiring). Bob Dinerstein from American University cited a study that reported there were 11 prison clinics in the country at this point. My sense is that the momentum is in the direction of representing those in immigration detention. We have a Wrongful Conviction Commission in Connecticut and I taught a seminar with Mike Lawlor (sponsor of the bill that created it) to help create its structure. The public defender s office now has an office and we have had one high profile exoneration. Karen Goodrow is the dynamic lawyer who spearheads that effort. She would love to supervise law students and my sense is that the students would love to represent the innocent. My own bias is that someone needs to represent the guilty who are incarcerated and housed in deplorable conditions. Students remain passionate about the prison conditions work. They like tilting at windmills and like struggling with the procedural hurdles, pushing to find creative ways around them. PLN: What is your sense in terms of the number of students you see who have an interest in prisoners rights as a career? DIGNAM: A relatively small number but Sara Norman, one of my first two supervisees, is now the Managing Attorney at The Prison Law Office. One of the other lawyers was also a student here and others have worked there. Robin Toone, Sara s supervision partner, did prison work with Steve Bright for a few years and wrote Protecting Your Health and Safety [which is distributed exclusively by PLN]. Even though the numbers are small, they do great work. PLN: Do you see similarities among those students who do show an interest in the field? DIGNAM: I have had a number of math majors and a number of professional musicians. Go figure. PLN: How big of a role does a university play in steering students toward this field of law? DIGNAM: Yale prides itself on promoting and encouraging public interest careers. We are incredibly fortunate to be fully funded by the university, other than some litigation expenses which we finance with attorneys fees. I think the identity and style of the supervising attorney plays a big role. Doing work in federal court is a draw. Our civil procedure faculty -- Harold Koh and Judith Resnik, particularly -- teach habeas and believe it to be important so the students are introduced to that aspect of the work during their first semester. PLN: What is the picture like for prisoners in Connecticut jails and prisons? DIGNAM: Grim but nothing like Florida or Texas. Twenty of the facilities went on line in the 1990s and are the shopping mall atrium style with high ceilings and natural light. Northern, our supermax, has never been filled with the worst of the worst it was built to house. It is poured concrete, reflective glass and stainless steel. Very disorienting and depressing. There are far too few jobs and lots of idle time. The staff reports a real difference between the northern part of the state where the correctional officers describe themselves as cowboys and the southern part of the state. PLN: How many people are incarcerated, and has that number increased or decreased in recent years? DIGNAM: We had rampant overcrowding and decades of litigation that ended with the doubling of the number of facilities in the 90s. We are back to being overcrowded. PLN: What area(s) of prison and jail reform need the most work in Connecticut? DIGNAM: We need better treatment and alternatives to incarceration for those with mental health issues. We need a strategy to deal with the health needs of an aging population. PLN: It s my understanding you will BUY SINGLE COPIES OF MAGAZINES SEND FOR OUR 40-PAGE CATALOG 10 STAMPS OR $3.00 (Refundable with first order) BROADWAY NEWS 605 Broadway E Seattle, WA NO SUBSCRIPTIONS! EXECUTIVE CLEMENCY For Info on Sentence Reduction through Executive Clemency: NATIONAL CLEMENCY PROJECT 8624 CAMP COLUMBUS ROAD HIXSON, TENNESSEE, (423) (33-Years of Clemency & Parole Assistance) (Transfers Under The Int l Prisoner Treaty) 17

18 Interview with Brett Dignam (cont.) be leaving Yale Law School to become a clinical professor of Law at Columbia Law School in fall Why have you decided to start this new chapter in your career? DIGNAM: Personal reasons largely drove the decision. My youngest children (twin daughters) graduate from high school next June. This opportunity fell in our laps: my spouse teaches tax law and will also move to Columbia. Moving to the city was appealing. Change is good and there appears to be no shortage of prison work in NYC. PLN: What do you hope to achieve at Columbia Law School? DIGNAM: I would like to look at what the needs of the prison population are and how we can be useful. Preliminary conversations suggest that the students would add value by interviewing prisoners and vetting potential cases for the firms. Developing interviewing and client counseling skills is an important piece of clinical education. Every lawyer should understand the impact of our criminal justice policy and no one does without visiting a prison and, ideally, representing a prisoner. Columbia students have been doing state parole and family law work for years with Philip Genty. I hope to focus on conditions work in federal court. The Columbia students are extremely enthusiastic about expanding their work. I am hopeful that we can collaborate with other organizations that are already doing stellar work and help them craft new legal theories. PLN: You have been involved with prisoners rights issues for more than 20 years. In your opinion, what have been the biggest overall achievements in the field? DIGNAM: The development of premier offices that focus on prisoners rights and that are led by excellent and dedicated lawyers. The emergence of, an intelligent and authoritative voice led by those with actual experience. The increasing involvement of international human rights organizations who have investigated and reported on our society s disturbing fascination with and commitment to mass incarceration. PLN: What areas still need more improvement? DIGNAM: The United States Supreme Court would greatly benefit from a member who has had a relative or close friend behind bar. [Editor s Note: justice Clarence Thomas s nephew Mark Martin, is currently serving a 30 year federal sentence for distributing drugs. Justice Thomas routinely votes against prisoners and criminal defendants alike.] We could repeal or amend the Prison Litigation Reform Act so cases could actually get to court and lawyers would have an incentive to bring them. We could re-establish rehabilitation as a goal of sentencing and incarceration. We could establish programs that would allow mothers to be with their babies for a couple of years. We could provide educational opportunities to prisoners and teach them real skills so they are employable when they are released. We could always use more lawyers, particularly for the cases that have great dignitary harm but are unlikely to result in large verdicts. [Editor s Note: Brett Dignam and the law students of Yale currently represent PLN in a public records action before the 18 Connecticut Freedom of Information Act commission. As I meet lawyers who do prison and jail litigation I often ask them how they got interested in the work. At least 7 have told me it was because they took Brett s courses at Yale and were introduced to the theme. Brett does a great job of giving her students an opportunity to experience the criminal justice system firsthand through the work itself, speakers and visiting facilities. I have been a speaker on prison and criminal justice issues at Yale several times since my release from prison and can only say that Columbia s gain is Yale s loss. As a practical matter, Brett has provided a living example of how a dedicated instructor can have a serious impact on nurturing a new generation of prisoner rights lawyers; helping prisoners who have suffered grievous injury and further educate law students by giving them real world litigation experience they would otherwise not obtain. Paul Wright.] Florida s Private Prisons Still Lack Meaningful Oversight Florida s Office of Program Policy Analysis and Government Accountability (OPPAGA) has issued a report that finds that oversight of the state s private prisons has strengthened under the Department of Management Services (DMS) but significant weakness still abounds. The Florida Legislature authorized private prisons in When the Florida Department of Corrections (FDOC) had not contracted for any privatization by 1993, the Legislature established the Correctional Privatization Commission to realize the savings that are ballyhooed by privatization advocates. As PLN previously reported, the Commission s first executive director was fined and fired for ethics violations and the second imprisoned for embezzlement of state funds. That prompted the legislature to abolish the Commission and place responsibility for private prison contracting and oversight under the charge of DMS. Of the 19 states to have private prisons, only Florida places administrative responsibility for private prisons outside of its prison agency or a prison commission overseeing both public and private prison systems. by David M. Reutter As of October 1, 2008, Florida s six private prisons housed 7,725 of the state s 99,048 prisoners at an approximate annual cost of $133 million. By Florida law, private prisons must save 7% of the cost of operating a comparable state prison while housing a representative crosssection of the state s prison population. Due to the corruption of previous years, it is doubtful taxpayers ever realized this savings. To strengthen its oversight, DMS created a 300 item evaluation checklist that established detailed contract monitoring requirements. Once implemented in October 2007, the oversight resulted in removal of three prison wardens and assessment of $3.4 million in deductions and fines. Nonetheless, a critical weakness is that DMS has failed to address problems identified by FDOC s reviews of security, contraband and health infirmary operations of private prisons. The security issues include inoperable alarms, spotlights and escape sensors. Tool control and checking for tunneling under buildings has also been a problem. The infirmary operations include lost or never executed laboratory tests, unsanitary conditions and nursing staff vacancies. Contraband issues involve drugs, gang

19 material and weapons. There is no adequate mechanism to resolve these problems. While FDOC issues its audit reports, it has no authority to compel the private prisons to comply. DMS has taken no action because its contract monitors are not subject matter experts in prisons. The OPPAGA also found that private prisons are not serving prisoners with comparable medical and mental health conditions as those housed in public prisons. Only 16% of the prisoner population at five of the six private prisons are medical grade one or two. Meanwhile, comparable state prisons have a medical grade one or two population that ranges from 29% to 53%. Similar results in population occur for psychological grade 3 prisoners. Prisoners in these categories require medication and other special services. The result of these disparities undermines the requirement that private prisons operate at 7% lower cost than public prisons. The cause for this is locked in percentages created by the contracts, which were fine when they were signed, but fail to keep up with the state s fluid prison population. Another problem with the contracts negotiated by DMS is that they fail to hold the private prisons accountable for the effectiveness of prisoner education and rehabilitation programs. Although the contracts require that 10% to 30% of all prisoners must be enrolled in academic, vocational, behavioral and substance abuse programs, they lack performance standards of program quality and success. The report also finds that prisoner families are not treated equitably in regard to telephone and visitation policies. While families of prisoners in public prisons pay $1.80 for a 15-minute collect call, those in private prisons pay on average $6.18 for that same call. Private prisons also restrict visits to every other week or only on Saturday or Sunday. Public prisons allow visits every week and visitors may come on both Saturday and Sunday. DMS says the reason is smaller visit areas in private prisons, but its data shows those prisons have twice the median square feet of those in public prisons. Finally, the OPPAGA found that there are no established guidelines for the allowable uses of the approximate $1.5 million annual profits from prisoner canteens and telephone systems. Those monies are supposed to be used for prisoner benefit but have been used instead by the private prisons to purchase computers and software for administrative staff. The OPPAGA s December 2008 report makes recommendations for each area identified and the DMS said it will act on some. Specifically, it said it will take action to assure FDOC s audit reports are acted upon within 45 days to resolve violations, it will train its staff in prison-related operation and management, private prisons will be accountable for performance of their programs, telephone rates will be set comparable to public prisons and guidelines will be set for use of welfare trust fund monies. DMS said it would not hire managers and contract monitors with adult prison expertise, adjust the percentages of special needs prisoners at private prisons or change the visitation policy without conducting a survey to see if families wanted it and then it would occur only on a case-by-case basis. OPPAGA report number is available on PLN s website or at www. LEARN & UNDERSTAND THE LAW SINCE 1890 Whether or not you are interested in a Legal Assistant/Paralegal career, or choose to take this course for personal fulfillment, the law can be a powerful influence in your personal life. Learn Civil & Criminal Law Learn Legal Research 110 Years of Legal Training Experience Study in your spare time Affordable Tuition, Easy Payment Plan Call OR WRITE FOR A FREE CATALOG Blackstone For a Limited Time... Receive Black's Law Dictionary. (at mid-point of course study) Career Institute P.O. Box 3717, Allentown, PA When it s time for a change call the Admitted in and Filed Appeals 1 st, 2 nd, 3 rd, 4 th, 5 th, 6 th, 7 th, 8 th, 9 th, 10 th, 11 th, & D.C. Circuit Courts United States Supreme Court National Practice Federal Criminal Law Center Attorney Marcia G. Shein 2392 N. Decatur Rd Decatur, GA

20 15 Guards Charged with Assaulting Maryland Prisoners The Maryland Attorney General s Office has charged 15 former prison guards with assaulting prisoners. The charges come nearly a year after the guards were fired from the North Branch Correctional Institution and Roxbury Correctional Institution; another eight guards were not charged due to lack of evidence. [See: PLN, July 2008, p.38]. Nine former Roxbury guards were charged with second-degree assault: Robert D. Harvey, 62; Reginald Martin, 38; Scott Boozel, 28; Michael Morgan, 39; Tim Mellott, 28; Justin Norris, 24; Keith Morris, 26; Tyson Hinkle, 33; and Lucas A. Kelly, 29. In addition to assault, the six North Branch guards were charged with conspiracy to assault. They include Jason Weaver, 35; Kenneth Platter, 26; Richard Robinson, 36; Tony Nery, 42; Sherman Jones, 39; and Ryan Dolan, 28. If found guilty, the guards each face up to 10 years and a $2,500 fine. Their union, however, is confident of acquittals. We feel that at the conclusion of this that the officers are going to walk away from this cleared of the charges, said Patrick Moran, director of AFSCME Maryland. We re going to work through it and at the end people will be vindicated. The charges stem from the March 8, 2008 beating of prisoner Kenneth J. Davis, who had allegedly assaulted Mellott. As a result of four beatings by guards at North Branch, Davis was hospitalized; the attack left him unrecognizable according to court documents. Prison officials fired 25 guards for using excessive force on Davis and a group of other prisoners who were transferred from Roxbury to North Branch after fighting with guards on March 6, Three guards were later reinstated. Despite Moran s confidence that the former guards would be acquitted at trial, some apparently were not so sure. On May 26, 2009, Mellott and Kelly pleaded guilty to one count of second-degree assault. Both had agreed to cooperate with investigators; their sentencing hearings have not yet been scheduled. Prosecutors dropped charges against Reginald Martin in June 2009, and the charge against Scott Boozel resulted in a hung jury on June 16. The remaining former guards have yet to go to trial. Two have by David M. Reutter regained their jobs after winning hearings before administrative law judges. If I had to do it over again, I would do the same thing, stated Gary Maynard, Secretary of the Maryland Dept. of Public 20 Safety and Correctional Services, in reference to the firings. Sources: Associated Press, The Herald- Mail Motions to Oust California Prison System s Federal Healthcare Receiver Denied On March 24, 2009, motions by the California Department of Corrections and Rehabilitation (CDCR) to terminate the Receivership now operating the state s prison healthcare system under a longstanding federal lawsuit were denied by the U.S. District Court. Judge Thelton E. Henderson found that the Prison Litigation Reform Act (PLRA), 18 U.S.C. 3626, did not preclude him from appointing a Receiver as was argued by the CDCR two years after they agreed to such an appointment. Additionally, the court rejected CDCR s motion to terminate the Receiver s prison medical facility construction plan, which the CDCR alleged was too intrusive into state rights. The federal Receivership was ordered in February 2006 after Judge Henderson found that inadequate healthcare at CDCR facilities was violating the constitutional rights of prisoners (literally killing them at a rate of over 60 per year), and that no alternative narrowly-drawn remedy would cure the violations. While some of the Receiver s CDCR medical facility construction projects were in fact begun (most notably the new hospital at San Quentin State Prison and temporary modular clinics at three other prisons), no work was commenced at the remaining 29 CDCR facilities covered by the Receiver. The Receiver had demanded that state officials advance $250 million in legislatively-appropriated funds to begin planning for the needed expansion in prison hospital beds statewide, but Governor Arnold Schwarzenegger refused to comply. Instead, Attorney General Jerry Brown (currently an announced candidate for governor in 2010) filed a motion to dismiss the Receiver and replace him with a special master with vastly reduced by John E. Dannenberg powers. Brown argued that the state was improving prison healthcare and that a Receiver was no longer needed. Of course, the improvements he cited were due to court-ordered requirements in the lawsuit, under the direction of the court-appointed Receiver. Brown s motion amounted to a tactical delay in funding, a move no doubt tied to California s massive budget crisis but it did nothing to salve the healthcare deficiencies suffered by the state s 170,000 prisoners. The district court rejected CDCR s argument that appointing a Receiver exceeded the authority vested in the courts under the PLRA. CDCR had tried to confuse the issue by citing Congressional intent language tied to an earlier bill that had been rejected. Judge Henderson relied on the axiom that discarded language from a prior version of a bill cannot later be resurrected when construing the final form of the legislation. CDCR then argued that the Receiver s medical facility construction plan should be terminated. This approach failed when the court noted that it had not in fact ordered construction, but rather had ordered the CDCR to bring its prison healthcare system up to constitutional standards. Thus, the court was not operating in excess of its authority. As to the Receiver s orders, the district court found that his plan was not a set of detailed orders for construction and therefore did not amount to ordered construction as claimed. Regarding the proposed construction of prison medical facilities, none had yet been approved by the court and thus the state s objections were premature. In sum, CDCR s motions to reduce the strain of California s budget crisis on the backs of prisoners being denied

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