SIDEBAR :: From the Other Side of the Bars
"Just keep in mind, the court processes are not as thorough as they
Photo by Susan Fried
Carol Estes: This is for the next issue of YES! Magazine. YES! is a magazine that looks at problems in the world, and then tries to find a solution for them. It's going to be on human rights, and the part on prisons and human rights we're dealing with is the difficulty of you guys getting back into court to have your stories heard. And one thing that the guy who was writing the article for us focuses on is AEDPA. So if your story is related to that, that would be great. If not, I would just like to hear some of the things that prevent you from getting back into court when you get some reason that you should be heard. Some new evidence or some thing that was messed up about your case in the first place. What I want to do is give people an idea of what really happens. I think people think that you get a free lawyer, and you file all these privileged lawsuits and you just get back into court every ten minutes. I want to combat that image.
So, let's start with you. Go ahead and say your name and situation in any way that you'd like.
Anthony Wright: My name is Anthony Wright. I'm in here for murder. I finished the court of appeals, which is the first process. The second stage is the state supreme. That was also denied. After that, you must go file a PRP, and resolve all your issues from the first and second court. By happenstance, my appointed attorney for the court of appeals did a very poor job of looking at it. You must exhaust federal issues before you can get to federal court. They're taught that. They study for 20 years, and he should have known that. He should have known to use, or actually quote, the federal law pertaining to the issues that I had when going to federal court. But he made it seem as if it was the last chance, and me, having no juris prudence, was pretty much fooled, so I didn't follow up. Luckily, a friend of mine caught it, and said, “wait a minute, you need to cite some federal issues.” And only three issues I was able to catch. The rest of them are washed away for good now. But the lawyer I have now is trying his best to preserve the ones I did lose. But I think it will be impossible.
Carol: So, if you don't mention the federal issue when you file your appeal…
Anthony: You can mention the issue, but it has to be cited under federal law. You have to say, “because of this, in ‘The U.S. vs. This in This Circuit,' this is why you violated my rights.” You can't just cite state courts; you pretty much have to prepare yourself for the federal court. And they'll say, “well, you didn't mention it before, so how can it be a fault to you?”
Carol: So, if that happens, you have no recourse?
Anthony: Except for a substantial change in law.
Bartley: "If you're going to take somebody's liberty, give them ample
defense, and give them an ample right to appeal."
Photo by Susan Fried
Vance Bartley: Well, there are a couple of things. But it's extremely difficult. The law at the federal level is much different than the state level. And if you are, in essence, what's called time-barred, precluded from presenting any more issues to the federal court, the only way that you can proceed is by showing good cause, and there's a standard that defines what “good cause” is. That “good cause” standard has to explain why you didn't bring these claims earlier. In order to even pursue issues at the federal level, you have to have brought them to the state. You have to first give the state an opportunity to litigate, to respond. But what happens, and what has happened to Anthony, and what happens to a lot of prisoners, is that their state-appointed appeal lawyer knows all this, but he doesn't do his job effectively as you're going through the state appeals process, he just says, “Hey, you know, he suffered ineffective counsel, he suffered abusive discretion, what have you, and he cites all the state statutes and the state cases, but he doesn't ever say that in addition to this being a violation of state law, it's also a violation of federal law, under such and such constitutional amendment.
In Anthony's particular case, he had a prosecutorial misconduct issue, where the prosecutor was told specifically not to mention a particular piece of evidence. It was held to be inadmissible. But the prosecutor said it in front of the jury anyway. And his attorney didn't object, so when he got to federal court, the attorney general said, “well, you never said in state court that this was a Fifth Amendment violation, that this was a due process violation under the federal law.” And so, merely because he didn't say that it was a federal violation, the attorney general said, “hey, you've got to drop this claim, or you're going to be in danger of what's called a mixed petition.” A mixed petition is where you have claims that are exhausted, and claims that are unexhausted. And when that happens, you're in danger of having your whole writ of habeas corpus denied. In other words, appeal over. So now, he's in a Hobson's choice: do I forego this issue, or do I risk losing my whole appeal? Keep in mind, this is an issue that could very well result in a new trial. The prosecutor got up on the stand in front of the jurors and said something that the judge had previously said, “you can't even talk about this.”
Anthony: And you're stuck at a crossroads, because it's not like they'll say, “well, we'll allow you to dismiss this part of the petition if you want to, knowing it is a valid issue, or you're risking the mixed petition. So they're basically saying, “well, we may be wrong, but you didn't bring it up right, so get rid of it.” You risk the chance of losing it all.
Carol: So if you have a mixed petition…
Anthony: …they just throw it out.
Carol: So a mixed petition is the worst possible thing.
Vance: I think, when you talk about all this, what's really important to note in this piece is that unless you have a good attorney, or unless you have just spent years and years immersed in litigation and you have learned these things on your own, you will have no way of knowing. And basically, your right to appeal is already hindered, before you even realize it. So many people come to the institution, and they don't even know how to properly file a statement of additional grounds, which is kind of like a prosé brief. They don't have a clue how to do it, and so they're pretty much at the mercy of their appointed attorney. But I'll let some of these other gentlemen tell you their stories, and then if you want me to get into the specifics of AEDPA, I will.
Carol: That'd be great.
Catherine: So, there's no penalty for the lawyer not doing his job properly?
Anthony: He's not required; that's the thing. He's not required to actually represent you, unless you pay for it. Unless you pay for an attorney, pay for counsel, the ones that are appointed are like “the state doing you a favor.”
Vance: Let me just give you a quick example. In his case, I helped him with some post-conviction stuff. That's how we discovered all this. His attorney has now written to him and said that the post-conviction work was better than the work his old attorney did. His old attorney was so ineffective as he took him through the state that we could not even get him to send him the brief that he sent to the state supreme court. So we didn't even know if all his issues had been brought to the high state court. The guy wouldn't even send him his brief.
Anthony: My current lawyer says the inadequate five-page brief that my appellate attorney filed was just ridiculous for a professional to even submit, for a case of my magnitude. I went to trial for three weeks. I was actually fighting my case for a year and a half. So some people wanted $50,000 just to look at my case. Five pages just didn't cover it. That's like the index!
Vance: So the actual rule is, the appellate attorney is only required to take you to the court of appeals. That's it. They can take you to the Supreme Court if they choose to. And if they decide not to, you're on your own. If you don't know how to file a petition for review at the Supreme Court, you're done.
Carol: And this is a state-appointed, appellate attorney. You were saying they're not required to be competent, or something like that?
Anthony: They see it as doing you a favor, because it's like they're saying, “okay, I'll just take care of the odds and ends.” They're not required to visit you, they're not required to ask you, “is there anything that happened in trial that I'm not seeing? Do you have any input?”
Carol: So he just goes out and does it? He doesn't even talk to you?
Anthony: They'll ask, “is there anything you remember that you want me to check the law on, to check if it's valid? Are there any issues you want to bring up before I file this?” He actually put a block on his phone. I had my family call him and tell him to at least let me know what he filed. I sent three different complaints to the grievance association saying, “put up or shut up, because if you don't let me know something, and then if you file something on top of something…what is it called if you file something on top of something?
Vance: If you don't know what your attorney has filed, and you come behind him and try to raise issues, the court says, “wait a minute, your attorney already raised this.” They will reject those claims because they will say you're attempting to file a previously rejected legal claim. So in essence, it's worth no more than the paper it's written on. Even if your attorney failed to adequately brief it in the first place.
Carol: And can someone in your position then try for ineffective assistance of counsel?
Anthony: I don't think so. Unless it's on an appeal attorney, I've never seen it done.
Vance: You can file ineffective assistance claims on appellate attorneys, but it's extremely difficult, and you cannot prevail on ineffective claims simply because he didn't federalize a brief or he didn't take you to the state supreme court, because he's not required to. And it's not that these are bad attorneys, it's just that they're on a limited budget, and you're just another guy. They've got a stack of files on their desk, they're overworked…
Catherine: So, how is it that you have come to be so knowledgeable about all these issues after your arrest?
Anthony: You're forced, really. You're thinking about your freedom, and you get to reading, and you start understanding, and Vance has been here longer than I have … what, ten years?
Vance: Yeah. I used to work as a law clerk. And from day one, I just literally pitched a tent in the law library.
Anthony: And I can do what a paralegal can do; I can always file a brief. Those are things you're not taught, and usually they don't want to share it. Sometimes if you go to the appointed attorney and try to mention something like that, they feel challenged, like, “what do you know?”
Carol: Let's go with Sherwood.
Knight: "I want to be punished according to the law. No more, no less."
Photo by Susan Fried
Sherwood Knight: My name is Sherwood Knight, and I've been incarcerated for twenty-one years now. It took a while for me to understand law, because I'm not an attorney. And doing that, I discovered a lot of things. When I ask for transcripts, I don't get them, or they're incomplete. I don't get all the briefs that were filed by the attorney or the prosecuting attorney, so I'm just kind of fumbling around in the dark. Just three years ago, I finally got the complete set of transcripts – with some briefs – only to discover that not everything is there. And so, again, I'm kind of stumbling in the dark. I got life without the possibility of parole, and I find it difficult to get back in [to court], because the attorney only raised one issue. When I was asked what I think, I kindly explained it. There are three ways that this crime could happen. One is the life without possibility of parole sentence, one is second-degree, which carries twenty-seven years, four months, and the other is, at the very least, manslaughter. Now, I'm not saying I should not be punished for anything. However, when it's not clear how this happened, then this issue needs to be readdressed. But, due to these new rules and regulations, and because this issue has not been brought up, I'm having a difficult time bringing this back in. So I'm kind of caught between a rock and a hard place because like Vance just said, they have standards. And even though you may meet that criteria, if my transcripts – which I'm still trying to obtain, because I never got them – if it says in a few little words: you have one year to appeal this, then I've got a problem. Even though this evidence here is so clear that it could change my whole sentence, I'm still stuck with this sentence, without it being proven fully to the jury.
So, like many others, I'm finding it frustrating. I do not have the resources or the income to get the necessary legal help that could make a difference. Like Mr. Wright said, I'll talk to an attorney, and some will want 50, sometimes $80,000, right off the bat. Right off the bat. That's just to start. There is no way I could come up with that kind of money, in here. I'm precluded from even trying to attempt to raise that kind of money. And when you don't have legal knowledge, and your family members don't have legal knowledge, then everyone is fumbling around not knowing what to do. And if you do have a good issue, you are afraid to take that step for the simple fact that if you mess it up, it is gone forever. There is no bringing it back. So I'm kind of stuck right now. I don't know what to do. When this law was put out, it was basically – I believe, correct me if I'm wrong – to prevent death-row inmates from repeatedly filing over and over and over, and the backlash just kind of came down to everybody else. I think Clinton brought that into being. I think he was the one who did that. I don't know, you know? I'm just kind of numb. It's a system that is set up so that you think you understand it, but you don't. It's very difficult.
"Sometimes it's money that gets you over the hump, and when you're in a
situation where you don't have any, you're less fortunate."
Photo by Susan Fried
Kimonti Carter: I got life without parole. My situation is a little bit different than everybody else's. I had a co-defendant, and our trial was just a little over four weeks. We had a lot of things that just went wrong in our trial. At the end they ended up having a locked jury. After a while, someone from the jury got up and got a dictionary, and they looked up all these words in our case, like accomplice and premeditation. They unlocked the jury, and they came back with a different ruling. My crime partner and I were charged with murder, but I was charged with “aggravated murder,” and he was charged with “murder with extreme indifference.” That was one of the issues: the inconsistent verdict. We tried to get separate trials in the beginning just for that reason. As we went through, and got sentenced, and all that type of stuff, I got a lawyer from out of Pierce County, and jury misconduct was one of our issues. In our first level of appeal in the courts, my co-defendant got accepted back on for jury misconduct, but I got denied. So, had he continued to go through the motions, my appellate attorney volunteered to take me a step further, because I guess she didn't understand how they could accept him and deny me. As she filed her brief, I filed my prosé brief, but I didn't really know anything about the law. Then the next step was denied to me again. So now I have no lawyer, and I'm trying to ask people around here who are knowledgeable. And this time I'm at Walla Walla; I'm not at Monroe yet. I'm trying to ask people, “what do I do next?” Sometimes you run into people here who have “broad shoulders,” you know – they really know about the law. If I keep paying these jailhouse lawyers to help me with my prosé brief, help me with my habeas corpus, I keep getting further along up the court system, but I got into a situation where I didn't exhaust all my remedies. I got into a situation where I had to submit another twelve pages just to exhaust my remedies, so at this point I knew I needed help. So I'm constantly trying to help my family earn the money so that it can be done right. So, as I'm earning money to get a lawyer, but by the time I repay one, I'll have run into the one-year time-bar. The whole time, I'm sitting here thinking, “well, I know I've got issues that will work.” But when I go to the federal level's door, I want to go in with an attorney, someone who's experienced and knows what they're doing. And I want to listen to their issues, like the good news and the bad news. “The bad news is, you had a time bar. The good news is, sometimes there are ways around it.” But it seems that all those petitions that I was filing made it to where she couldn't raise them in the federal court, so now my only hope is newly discovered evidence or a change in the law.
Catherine: What are your options for making money? Anything at all?
Kumonti: Fifty cents an hour; about fifty-five dollars a month.
Sherwood: And if you owe any financial or legal obligations, like court fees, you're taking money out of that, too.
Kumonti: So, if you don't have any stable foundation outside, it's really hard to even give a lawyer a retainer to try and help you. In some cases, there are real, valid issues and real, valid arguments, but the prejudice is obvious. Sometimes it's money that gets you over the hump, and when you're in a situation where you don't have any, you're less fortunate.
Carol: It seems to me I've heard this before, where two co-defendants get wildly different treatments. Are there any legal grounds for saying, “this was the exact same crime; why is he being treated one way and I'm being treated another?” Can you bring that up to the court?
Vance: In some situations (and actually, I'm familiar with this case; I know his co-defendant), you'll have two guys, and one will be charged as a “principle” and the other as his “accomplice.” And what happened in his case was that the co-defendant was charged as the accomplice, and they later found that the accomplice instruction they used was found to be legally defective, thus it alleviated the state from the meeting their burden. That's why his co-defendant went back. But there are often problems that stem from the charging information itself, as far as who is really the principle and who is really the accomplice.
Carol: If justice were done, if people were able to access the courts, can you give me an estimate of how many people would get out?
Vance: I can share with you this. I'm serving a three-strike sentence for robbery. I had a prior conviction in 1995, and I pled guilty to it. I pulled a “give me your money” and walked away from them. Didn't touch them, didn't take anything, no weapon. And they counted this crime as a strike. I pled guilty to it because they said they'd send me to inpatient treatment. I never went to the treatment. They said I was ineligible, after I had already pled. And I actually went all the way to the ninth circuit, who ordered an oral argument hearing and everything, and I was eventually denied because of AEDPA. They basically said, “yeah, we know that you're serving a life sentence predicated on a prior conviction that's probably invalid. However, you didn't appeal it back in 1995. Thus, you can sit in prison.” Only by the grace of God, and the fact that I spent so many years studying, I found an issue that every one of my lawyers missed. And just recently, I was able to hire an attorney, and we found out that that same prior conviction is invalid on its face, because the court sentenced me to a statutory max that was double what it was supposed to be. The state just recently conceded there, so it looks like I'm going to win my appeal. But again, this was an issue that I found, and every one of my lawyers missed it. As a matter of fact, I had a lawyer, the prior attorney who handled my federal habeas, who actually wrote to me because she was afraid that I was going to come after her for ineffective counsel, because she failed to catch this issue which could have freed me years ago.
In answer to your question, I think that most definitely, if more guys were further advanced in the appellate process, you would see a lot more success. Because I would venture to say that there are errors that happen in everybody's case. It's just a matter of knowing what you're looking for, knowing how to present the claims to the court, and getting around all the procedural bars that are put in place. The court would say that these bars are put in place to provide what's called finality in judgment. In other words, we can't allow people to appeal, appeal, appeal, appeal. And while there's certainly a need for that from an economic standpoint, and because there's a need for finality of judgment, you're also putting people in a situation where their liberty is being taken because of procedural bars. I could very well spend the rest of my life in prison on a conviction that never should have even counted, had I not understood what I was looking at. Every one of my lawyers missed it. I was able to do the bulk of the work so that when I sent it out to some lawyers I knew, the lawyer I hired basically took it for little or nothing since I had done most of the work. His exact words when he got it were, “this is a slam dunk!” And the state has conceded, so I'm just waiting on an official decision now. When the state concedes error, that's pretty telling in and of itself.
Carol: Do you have mixed emotions about this? Do you feel 100% thrilled about getting out of here after all this time?
Vance: Well, I've had a wealth of emotions, because in essence, I'm months away from getting my life back. But also, I put myself in this position. Had I not made the choices I made, I never would have had to deal with this. But I guess I'm just grateful that I took the approach when I first hit the prison mainline ten years ago, that I had to learn this “Chinese language,” because if I didn't learn it, I would have to face what Kumonti faced: having all these people do my work and not knowing what they were doing, and then I would face mixed petitions, time bars, claims the state wouldn't even respond to. I can't tell you how many appeals I've read for people that prosé litigates have done, that attorneys have done, that were worth no more than the paper they were written on. I always advise people: the best thing you can do for yourself is preserve your issues, spend your time in the law library. The resources are limited, but they're there. They have the law books, they keep them up to date, they have the shepherds, they have the federal supplements, and you just have to put in your time over there. Because chances are, you are going to be in a situation where you're going to be overwhelmed, and there's not going to be anybody to help you. And that's just the way it is. I actually had a meeting with the chief judge to the division one court of appeals, and she said, “listen, our job does not mean we're looking to free anyone. Our job is to affirm convictions. However, if you can prove a due process violation, or you can prove some constitutional issue, then we will grant you relief. But we are not looking to free anyone.”
I think the biggest issue that prosé litigants face is that a lot of guys don't understand the difference between trial and appeal. A lot of times, a guy will come in, and he's still stuck on the trial, and he's still talking about what went on in trial. But what he fails to understand is that now, the burden is not on the state anymore, it's on you. And in an appeal, you must meet the burden of showing what the error was, and it has to be presented timely, and you have to meet all of these procedural requirements. And it really is overwhelming. Especially for a guy who's got a fifth-grade education.
Anthony: And the lawyers know that. It takes them seven years [to learn all this], and they barely pass the bar, some of them. And they want us to learn this in a year. Or ninety days, or thirty days.
Vance: And you start talking about AEDPA, and you start talking about federal litigation, that's a whole new ball game. Talk about Chinese.
Carol: And that's a good point, that we don't even always expect law students to get it.
Anthony: Yeah, sometimes it takes them two or three times to pass the bar. It takes some serious studying, and they've got top-notch educations, and most of them are valedictorians from their class. And then you tell people from a street life coming in here and cramming to learn something. I've read briefs, too, and sometimes the spelling is all wrong, or the arguments don't make sense. It's sad, that they expect us to learn anything, but we have to, I guess. Your struggle for survival gives you a little bit more prudence. You concentrate more on what you're trying to get across. And no one knows your case better than you. Even the lawyer, he's doing it for money. If your mother or father was in here fighting for you, it would be different. But you're the only one who knows the case, and wants to be free more than anyone, and knows what happened and what didn't happen.
Vance: There are exceptions to the rule, though. I will say this. Anthony and I actually have the same attorney, and the attorney we have is a really rare breed. He is an exceptional attorney. He is one that really cares about justice. He is even willing to forego some of his fee if he really believes that you've been dealt an injustice. I've had a couple of other attorneys along the way like that, but it's few and far between. In most cases, if you don't have $7,500 for them to even review the case…well, you know. It's a business.
Carol: This is kind of an obvious question, but would you say that the vast majority of guys in here who need a lawyer don't have one?
All: Most definitely.
Sherwood: It's been like that for me since day one.
Carol: It strikes me that that's what people in here need more than anything. Do you think that's true, or not?
Sherwood: I can help him more than he can help me right now, because I understand things. I just need his or her expertise. Learning the law—Vance put it very eloquently—is like learning Chinese. You find one law that says, “okay, I have this right,” and you have ten more that say you don't. It's very frustrating. And like Mr. Wright said, they want you to learn this in less than a year, when it takes them eight years of schooling. So you're already at a disadvantage. There's a lot of pressure. If you want to go home, if you want to get through these issues, the risks and the stakes are very high now. You've got this clock ticking in your hands, saying, “I've got to get this done. Where can I turn for help?” And if you're like Kumonti, you go to someone and ask them, and then they put you in a bind. It's just one vicious circle.
Kumonti: And not everybody's case is about getting free; some are about getting the time to fit the crime. I think that a person needs to be held accountable for their actions. If it's second-degree murder, you owe twenty years in jail. But I don't think they need to give you seventy-five when there's no sense in it. And I think that's what the people are seeking: to fix that injustice. Don't give me the high end of a sentence because I didn't cooperate with your prosecutor, when he was taking a personal stance in his prosecuting style that was vindictive.
Sherwood: Actually, I would be at home if I'd taken the plea bargain. I got offered twenty, and then I got offered ten, but for standing up for what I believe in, I got life without parole.
Vance: I'd like to put this out there too, because I think it's important to talk about all sides of this issue, if we're going to talk about it. There are a lot of guys who come to prison and, for whatever reason, they just don't do anything. They don't go to the law library, they don't crack open a book, they don't ask somebody, “can you explain to me the court rules, or can you explain to me the procedures for doing this?” And obviously there's a lot of fear involved, because a lot of people don't even have a high school education, and now you're asking them to explain what these Latin terms mean, and they don't know what you're talking about. But I didn't know any of those words, either. So it can be done, and I think you have to put forth the effort regardless. It's just like anything else. If you don't know it, you have to put the time in, especially if you're in a situation where you know your livelihood depends on it. And then if you just can't get it, you just can't get it, but I've seen many, many people come to prison and they just figure, “well, I'm here,” and they fall into the prison mindset, and then years later, the light comes on, but again, then it's too late. RCW-10-73-100, which establishes a one-year time bar, or because of AEDPA, which establishes a fifteen-month time limit to file a federal habeas from the time that your conviction becomes final.
Catherine: Is there any opposition to you sharing your knowledge with other people, or other people coming to you and asking for help? Or even groups?
Vance: No. I've done numerous litigations for family law, criminal law, you just cannot do work for money. I've helped numerous people, and I try still, although I'm not really active anymore, because I'm now more or less committed to my case, and helping my buddy Anthony make sure all his federal stuff runs smoothly. He's in good hands now, because he's got an attorney, but I still try and share information with people. But I believed in the concept of, “you can give a man a fish, or you can teach a man to fish,” and so, I would rather help somebody learn how to help themselves so they don't have to rely on me. If I'm gone, or if they get transferred, they can help themselves.
Carol: In your case, Kumonti, you were a juvenile, right?
Kumonti: I had just turned eighteen.
Carol: So, when you get convicted with a long sentence like that, and you get sent to prison, are you, or is a person, in any kind of psychological or mental shape to start learning law? What is it like to face that down?
Kumonti: Once you get to prison, everybody tells you, “you need to get in the law library, you need to get in the law library,” but it's overwhelming at first. Vance is very knowledgeable, but throughout the state, you'll find a lot of people who seem like him. You can't tell the difference between someone who is genuine and someone who's just out to con you. Some people are like, “oh, man, they can't do this to you! You're about to go home!” and you're asking, “okay, what else do I have to do?”…and the whole time, this person is walking you through the steps until they say, “oh, but this is going to cost you $100, and oh, this is going to cost you $150.” So you go through the motions, and if it doesn't work out, you go back to that person, and they tell you, “well, they always deny you on the first one, but once you file your habeas corpus…” You learn what they teach you. They can tell you the kinds of cases you need to look for, but I don't know how to apply what I learn as a lawyer would. And after I jumped through the hoop so many times, I thought, “well, I'm done. I'm going to find somebody who is qualified, somebody who works in the field.” That's why I'm trying to pursue a lawyer. It's numbing. You can't know who's actually, genuinely trying to help you. You can go in the law library and spend every day in there, but you have to really know what you're doing. And plus, you're working within time restraints. “After this letter, you have ninety days to do this.” You can file an extension, but…
Catherine: And what is the purpose of the time-bar itself?
Kumonti: To prevent you from going any further, I guess.
Vance: The purpose of the time-bar is to put a finality to the judgment. The court does not want you to have endless appeals. There needs to be a date and time that indicate, “okay, you've had your due process, we've allowed you to write your appeal, but you've lost, and now it's over.” But there are six exceptions to the time-bar rule, and in fact, the case I have in court, where the court conceded error, is an eleven-year-old conviction. But I was able to beat the time-bar because of one of those exceptions. That exception was that the judgment itself was invalid on its face. And that meant it was void; the document was fraudulent. So, as Kumonti talked about earlier, if he could find newly-discovered evidence, that would be an exception to the time-bar. New and substantial change in the law would also be an exception. I'm sure you guys all heard about the felony murder ruling that came down a while ago, which stemmed from the Mardi Gras incident where the kid got hit in the head with a skateboard. You have a lot of guys who have been in prison for years for second-degree felony murder that was predicated upon an assault. And for years, the court had said, “hey, if you get into a fight, and somebody dies, that's murder.” Well, the Washington State Supreme Court said it isn't. If it's predicated upon an assault, and the person dies, that's a “manslaughter.” So because of this new case, all these guys got relief, under this “new and substantial change in the law.” Many cases got to go back, even though their year time-bar was up. So there are sometimes exceptions to the rule, but it's very difficult to beat the time-bar. And it's tougher in the federal court.
Carol: What would you say might be a solution to this, that would be fair?
Anthony: Better representation, I'd say. They should be responsible and professional enough to do their jobs, and do what they were trained to do, and not just categorize because they know a lot of the people who come from the streets get in trouble, thinking that they haven't finished high school or are always on drugs, or whatever. They have to be responsible, and have a sense of justice. They're studying law. Be lawful about it.
Vance: And the prison contact attorneys that are paid to assist inmates…
Carol: I didn't know there was such a thing, actually.
Vance: Hardly anybody knows. That's because they don't do anything. When I was a law clerk, we had to fight to get them to come here and do a seminar. These attorneys need to hold seminars where they teach guys about the court rules and about timelines, and how to prepare a brief, and what the margins are. They could do these things. They're paid to do them. But they don't.
Carol: What do they do?
Vance: Oh, they come up maybe once a year and hand out a little five-page thing about the new case updates, and they'll sit there spouting legal jargon that nobody in the room understands, and then they leave. They may take one or two cases a year out of the whole institution.
Carol: Are they paid enough money that they should be doing more?
Vance: Not really; they're just public defenders. A few years ago, they threatened to take the law libraries away in Washington State. Many states don't even have law libraries, so you are literally at the mercy of these paid contracted attorneys. And if they don't help you, you're done.
Carol: Was that movement to remove the law libraries thrown over?
Vance: It was this time, but it could happen.
Carol: To wrap up, could each of you think of something you'd like the readers to know?
Anthony: Just keep in mind that the court processes are not all they're cracked up to be. The court processes are not as thorough as they seem. I forget the percentage, but it's very low, the percentage of appeals that get accepted into the ninth circuit of the U.S. Supreme Court. Even though new state officials are elected every year, in the Supreme Court, they're there for life, and that's where everything gets overturned. It's pretty much political. The guys who get elected every year don't want to look soft on crime, so they send it up there, and by the time it gets up there, the federal issues haven't been preserved. At the state level, they're not wrong, but if that's what the taxpayers' money is being spent on, for legal representation, it's not being spent right.
Vance: It would take me hours to say what's adequate, but I'd say what I'd like the readers to know is that your son or daughter could easily become a prisoner. And I would think that you would want your son or daughter to have competent legal representation. That's what our constitution requires. If you're going to take somebody's liberty, give them ample defense, and give them an ample right to appeal. The system is made up of human beings, which means it's fallible, and mistakes happen. A person should be held accountable for committing a crime, but the state should also be held accountable to convict that person by the rules.
Sherwood: I just want to make it clear that I want to be punished according to the law. No more, no less. Also, I think it's okay to be tough on crime, but you also must be smart when you're tough on crime. Because as it stands right now, it's a monster that is out of hand. It's sucking the economy dry. I think the money could be better spent than the way it is now.
Kumonti: I think Vance summed it up for us. I think everybody should be offered a fair opportunity. I think a proper punishment for each crime should be dealt. I don't think exceptional punishments will prevent people from committing crimes. I think punishing a person for what they did is punishment enough, regardless of the case. To lose the rest of your life as a young person is a lot different than somebody who's older. It gives you a lot of time to mature. I've been locked up for twenty years, so I've had a lot of experiences and turned a lot of corners. If I was getting out in another ten, once I've done thirty-something, I don't think I'd be pouting too much about that. As it is, I've learned a lot by thinking about the things that I have done, and where I want to be. But I don't think there is an excuse for giving kids a whole bunch of time. I don't see how you can justify it.
Carol: Thank you, gentlemen.
Vance: Thank you, Carol.
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