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Wednesday, May 12, 2010

Assisting Tom on His Appeal -- March 26, 2010

This week, I worked on a post conviction appeal of an older man who is celled in my cell house. I have my own post conviction appeal to work on, as well as a clemency petition. I am already very busy from the time I wake up until I go to sleep. However, I have been putting off helping this man for a long time. I feel a duty to assist people who ask for help because of the atrocious counsel I have received in the past. I don't like to see or hear about people who are denied due process from their own ignorance or an ineffective lawyer. However, in this case, it is difficult to become motivated when the evidence is overwhelming.

A number of people in prison have let me read over their cases. When I do this, I learn a lot of personal details, and details about the crime. From time to time, people will ask me about that information, and I refuse to tell them. If they want to know, they can ask that person, and even if they lie to them I will not say otherwise. I feel obligated to keep their secrets as if I was their lawyer--it seems like a violation of trust to do otherwise. Thus, because this journal entry will be published, I will give this man the alias name of Tom.

Tom was convicted a few years ago of killing his wife and her boyfriend. As all people convicted of more than one homicide in Illinois, his only punishment could be death or natural life without parole. The state's attorney chose not to seek the death penalty because of the relationship of the victim to the killer, and circumstances of the murder. The state's attorney also probably did not want Tom to receive the expensive defense counsel now mandated for those with death penalty cases. Tom comes from a small rural county in southern Illinois that does not have a large budget. It is quite disturbing to me that those who face a possible protracted death sentence do not have the same rights, protections, or resources provided to those facing death. But, that is how it works in Illinois, and probably in other states as well.

On a post conviction petition, only issues that are not on the record can be raised. Errors that appear on the record are to be raised on direct appeal. Tom's direct appellate lawyer, appointed by the state, cared little about raising all the errors on his direct appeal. In fact, he only filed one issue. The issue pertained to the judge failing to hold a hearing about whether appointed defense lawyers should be replaced after Tom wrote the judge that his public defenders were failing to do their job, and also did not agree with each other in defense strategy. The lackluster performance, I surmise, was due at least in part to the amount of evidence against Tom. While reading Tom's case I also felt I was wasting my time, and I should focus my efforts on my own case, or someone who could gain from my work. While reading this paperwork, I repeatedly said to my cellmate, "Why can't people come to me with winnable cases?" Despite this, I gave my word to Tom, and I will help him to the best of my ability.

Tom sent me many volumes of trial testimony to read. Immediately I told him I needed discovery material, not transcripts. I cannot raise any errors that appear on the record except the ineffectiveness of the direct appellate counsel for not raising issues in his direct appeal. Tom told me that all he had was pretrial and trial transcripts. I asked him where the discovery was, and for those who don't know, discovery is all the investigative reports and information the police have and must turn over to the defense. I was informed that a family member in southern Illinois had it, and he was not certain he could get it. I told Tom I will review the transcripts in their entirety, looking for errors his previous lawyer did not raise; hopefully, before his post conviction is due, he will have procured the discovery. If not, I will just have to pick his brain for issues outside the record.

Earlier this year, I helped Tom file a P.L.A., which is a petition to leave appeal to the Illinois Supreme Court. At the time, he wanted me to review his case for errors on the record. However, it was too late. A defendant cannot ask the IL Supreme Court to review issues not raised earlier. Tom then asked me why I did not help him earlier. Because, I told him, you did not ask for my help until after your direct appeal was shot down by the appellate court, and you realized that you were going to die in prison. He asked me if he was going to die in prison, and I told him he probably was, but I cannot say with certainty until reading everything.

As I knew, Tom's P.L.A. was rejected. The IL Supreme Court only hears death row appeals or appeals that have issues that the lower courts are in conflict over. Tom's single issue, no matter how well worded or argued, was not one of those issues. When Tom received the denial from the Supreme Court, he quickly sent it to me. There was some legal jargon that had confused him, and made him believe that possibly his case had been remanded back to the Appellate Court. I had to inform him this was just the high court informing the lower court of its decision.

Tom has 6 months from the rejection by the IL Supreme Court to file a post conviction appeal. Before the answer came from the high court, I told him to begin working on his post conviction. There is no point waiting to be rejected. However, he did not heed this advice. Possibly, by now, he could have the discovery materials, I thought. However, now that I read his transcripts, I can see why he has been unable to procure the papers from his sister.

I began reading Tom's transcripts early this week. When I read them, I take meticulous notes. I also write down any possible issues that can be raised. Furthermore, I write many questions. These questions need to be answered by legal research, or by Tom. I have been in prison 15 years, and during that time I have become familiar with many areas of law. However there is a lot I do not know, or am unsure about. These questions are for Tom to look up and find corresponding case law. I do not have time to do all the research myself. Afterall, I have my own research to do in my own post conviction. My time at the law library is short and invaluable. Despite how depressed, unmotivated, or ignorant of law, Tom will have to do much of this work himself.

Reading transcripts is not like reading a novel. One must focus on what they are reading and absorb all the small details. I have an exceptional ability to find details that may be relevant. Possibly, I focus on details more than necessary. Although I may waste time, at least my review is thorough. I doubt anyone at Stateville would have spent the time to comprehensively go over his case as I have. I tend to believe Tom did not expect me to do this, and now that I have, I tend to believe he is not very grateful. Possibly, he wanted me to breeze through these transcripts and tell him he is doomed, or contrarily, blow some smoke up his ass and tell him he is going home. It is not that simple.

I began reading the pretrial transcripts and quickly noticed his public defenders did not put in many motions. Pretrial motions are important to frame the parameters of the trial. Certain evidence or testimony should never be allowed, and this can be resolved before a jury is ever chosen. I am not sure that Tom would have won these motions, but his lawyers should have tried. A sentence of natural life without parole is worse than death, and defense lawyers should fight every meritorious issue. Some lawyers who know the judge involved and the system, may not bother with motions because they know how the judge will rule. However, even if a judge rules against the defense in a pretrial motion, at least this preserves the issue on appeal. A higher court may not agree with the trial judge. In my case, my most important pretrial motion was to have my claimed statements to the interrogating officer suppressed. My lawyer presented the judge with many witnesses who testified directly, or indirectly to my abuse while being interrogated, and violations of my Miranda rights. Although it is not on the defense to prove their motion, my trial lawyers did. However, it did not matter. My judge was not going to prevent the prosecutor from presenting the lies of the interrogating officer. If he did, the prosecutor would not have a case to go forward with. If my direct appellate counsel would have raised this error on appeal, the appellate court may have ruled against the trial court. Furthermore, even if the elected appellate court refused to do so, the unelected but appointed federal court may have thrown out the lies of my interrogating officer.

After reading the pretrial transcripts, I read Tom's jury selection transcripts. I found his lawyers did just about as good a job in selecting a jury as mine did. My lawyers did not pay attention to the backgrounds of jurors, believing the prosecutor's case was so poor that it did not matter who decided the evidence. After my trial, I found in defense notes and memorandums, the opinions of multiple lawyers who work at Jenner & Block: legally, a person not at the crime scene who allegedly lent their vehicle could not be found guilty under the law of murder by a theory of accountability. My inexperienced lead trial lawyer was so smug and arrogant, he did not see a need to scrutinize jurors or hire a jury consultant. In fact, contrary to popular wisdom, my lawyer sought out upper-middle class people who he believed were more intelligent and less likely to be moved by emotions or pretrial publicity. However, this would be a fatal error because upper-middle class people were more likely to find someone guilty and side with the prosecutor. They also were more likely to be well read, and fully aware that I was named a suspect in the mass murder at a nearby Brown's Chicken restaurant in Palatine. Finally, even the most educated and financially well off were not shielded to being moved by the theatrics of the prosecutor.

In Tom's case, I noticed a different perspective among his lawyers. They seemed not to care who sat in judgement because of what little evidence the state had, but just the opposite. It seemed they did not want to bother scrutinizing the potential jurors because their client most likely would be convicted regardless of who was picked. A person with a relative in law enforcement was not challenged by Tom's lawyers although every defense lawyer knows to strike them immediately. Unfortunately for Tom, an argument for ineffective assistance of direct appellate counsel for not raising the ineffective assistance of trial counsel for failing to use challenges will not be a winnable issue. The court will almost certainly say it was probably trial strategy, and for some reason, if not readily apparent, the trial lawyers liked him to serve on the jury.

The following day I read the first volume of five of trial testimony. Each volume was approximately 500 pages, and even though transcripts are typed double spaced and with large margins, they would take several hours to review. I missed several meals, and I did not go out for recreation this week in order to analyze Tom's case. Many times, I would become distracted by my cellmate, people outside my cell, or guards. I tried to block all the cell house noises out by wearing my stereo headphones, listening to tapes, or the radio. I would have liked to listen to some good uninterrupted classical music while I worked, but there are too many lulls in the music that would allow the blaring noises from the cell house to be heard. Tom, himself, would also distract me when he returned from chapel services, and came to my cell bars. He would ramble on and on about his case, but I was not interested in the information he offered because it was irrelevant, or was not in the order of how I was approaching his case. I told him once to write down certain subject material that I would want to learn about at a later time, however, he failed to do so.

The first part of any murder trial, the prosecutor wants to lay a foundation for other testimony. Tom's wife and her boyfriend were found dead at the boyfriend's home. They were both killed with single shotgun blasts to the midsection. Despite valuables being in the house, nothing was touched or searched. The murders definitely seemed like they were committed in passion, or hatred. From the evidence, it seemed the killer kicked in the front door and when met by the boyfriend, he shot him; the force sent his body back several feet. The killer then apparently stepped over the body and into the blood and proceeded through the house, leaving footprints. The footprints led to a bedroom closet where the female victim obviously was hiding. She was shot immediately, and the bloody shoe prints went straight back through the house and out the door. The victims were found the following day when suspicions arose when the woman failed to return home in time to take her children to school.

I immediately thought the bloody footprints would be the key to solving the murder. I looked forward to seeing how the prosecutor connected them to Tom. However, quite interestingly, he was never able to do so. The impressions left at the murder scene were of a unique pattern type created by a gym shoe. No gym shoes were found in Tom's possession. Contrarily, before and after the murders, Tom was seen in video footage at various stores and bars wearing boots. Tom's car was also searched, and not a trace of blood was found. A crime scene investigator was called by the State to testify that it was no surprise that no blood was found. He told the jury that by the time the killer walked into his car, all the blood would be gone. This is pure fallacy, and Tom's defense lawyers were ineffective for not calling their own forensic expert. In the 21st century, the smallest trace of blood can be found and there is no way the killer who stomped into a pool of blood and left heavy tracks throughout the house would not have carried that blood into his car, unless he changed footwear.

In the first couple of volumes of trial transcripts, the evidence against Tom was poor. However, as I continued reading, the prosecution's case became overwhelming. There was no physical evidence linking Tom to the murder, but what did exist were numerous people who testified that Tom told them he was going to kill his wife and the man who had begun to date her. A few of these people were not credible but there were almost ten witnesses, including Tom's daughter and sister. Two people also testified that Tom asked to borrow their shotgun on the night of the murder. The latter person happened to lend one, and Tom returned the shotgun at one in the morning, claiming he changed his mind and was not going skeet shooting. Tom has a big mouth and while at a few small town taverns, he spoke over beers about how he would kill his adulterous wife and her new lover. A few friends testified against him that on the night of the murder he traveled with them to the victim's house, and after seeing his wife's car, got out. If not for their persuasion, he would have gone up to the door.

Tom testified in his own defense. He stated that he indeed had made threats against his wife and her boyfriend, but they were made while drinking, and he was not serious. He admitted to tracking down where the man lived and calling him. Tom told the jury he merely wanted to confront him about going out with his wife, and did not intend to kill him. He even told the jury he borrowed the shotgun, but his purpose was not to kill anyone but himself. Tom was incredibly depressed, and during the time the murders occurred, he claimed to be at the cemetery in front of his mother's grave. He had placed the shot gun underneath his chin, but after having second thoughts, could not do it. Instead, he left the state to get away from his sorrows. He drove all night and the next day to New Mexico, whereupon he spoke with his cousin who lived in the area. His cousin was to inform him that his wife was murdered and the police had a warrant for his arrest.

Tom's testimony was not so incredible, but parts definitely were a far stretch, and did not make sense. The prosecutor asked him why he traded his car with his daughter around the time of the murders. Tom's answer was that he wanted the small Eclipse to drive to New Mexico to get better gas mileage than his Cadillac, but his daughter did not want him to keep the car, and so he gave it back. Tom was asked why he thought his own daughter and sister would say he admitted to them killing his wife, and seeing him move the shotgun between the cars. Tom had no answer.

At the end of the cross examination, the prosecutor began to rant about all the evidence against Tom, and finally asking the question if he heard such testimony. Clearly, Tom's lawyers should have objected to those long-winded and loaded questions, but they did not. Time and time again, the prosecutor would rehash damning testimony and ask if Tom heard it, whereupon he would simply say yes, or something weak. I thought to myself that any innocent man would have broken such a line of questioning and defended himself. However, Tom remained silent. Finally the prosecutor said, "Do you really believe the jury is going to believe some other person other than yourself committed these murders? Are you going to tell them you did not do this?" Tom answered, "I don't think so." "I don't think so??!" said the prosecutor. "Did I just hear you say you don't think you killed them?" Again, Tom answered, "I don't think I did."

No innocent person would answer "I don't think so" to committing a double homicide, and it is clear that Tom is guilty. It is upsetting--I just spent a week of my time finding trial errors and claims of ineffective counsel for a person who basically admitted his guilt in these final pages. Despite this, I will continue to help him put a post conviction together. Even the guilty deserve to have the best defense, and it is apparent he did not have anything close to good counsel at trial. Because of how terrible my defense lawyers were, I am still incensed whenever I learn about someone else who was not given a fair trial. I also already gave my word to help this man, and I will not renege. I will get a post conviction prepared for him. However, after it is accepted by the court and a public defender is appointed, that is as far as I am committed. I will not continue to squander my time when I realize he can never win at trial. His best hand will be to gain a new trial and pray the states attorney of his cash-strapped county does not want to retry him, and offers him a plea agreement that will allow him to be released before he is buried on the prison grounds.