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Wednesday, August 4, 2010

My Past Defense Lawyers -- June 3, 2010

Today, I thought I would try calling my attorney. I was not certain if my call would go through, however. Due to the disciplinary ticket I received in January, I have been unable to use the telephone for the last three months. At Stateville, prisoners are not placed in "C grade" immediately, but whenever staff gets around to processing the paperwork. The date of my change to C grade is difficult to ascertain. The only way one would know is by trying to make a call, or a store purchase.

When I came back into the cell house from chow, I saw that my neighbor had the telephone on his bunk. He was coming back from chow as I was, and I asked him if I could use it. He said sure, but when we were let into our cells, he told me my other neighbor had already reserved the phone for that hour. On my gallery, we do not have a phone man, but simply write our cell number or name on a list taped to the phone. I handed the phone over to my neighbor and told him to give it to me when he finished.

About an hour passed before I heard the tapping of the phone on the side wall of my cell. I took it from him, and moved it across my cell bars to the other side. I did not want the cord crossing my cell to the desk. With the phone on the desk, I then pulled a couple of legal envelopes out of my box. I wanted to review what was in them before making the call.

The most pressing issue I had to talk about was not a legal issue, however. It was the lack of progress in my case. Jennifer Blagg was officially not retained as counsel until October, but she has been working on my case nearly a year now. What has been done in that time? For the most part, she has only reviewed trial transcripts and certain extracts from previous appeals. She has also outlined the issues that can be raised on a successive post conviction petition. However, most of those issues are issues that I provided her last year.

When I met with Jennifer the first time, I emphasized how it was important that the lawyer I hired not sit on my appeal like my former attorney. She assured me this would not be the case, and she had already done a lot of groundwork. This was true, and I was impressed by her enthusiasm. I had already done most of the research for my appeal. What I needed most was a motivated lawyer who would quickly frame these issues into an appellate format. Even more important to me was a lawyer I could count on to go out and gain all the supporting documents and affidavits I needed that I could not do myself.

I have been incarcerated for over 17 years. At the time of my arrest, I was 18 years old; later this year I will be 36. The best years of my life have been taken from me and every year I lose is less valuable than the former. My parents are in their 60's, and their health is quickly deteriorating. It is important for me to be released before they pass away. Time is of the essence, and I cannot let yet another attorney delay my freedom.

As I reached for the telephone, an inmate walked by yelling to the inmates, "lockdown!" He stopped at my neighbor's cell, and told him that there was an incident on the yard. Apparently, a man stepped out of the chapel line and began to talk with those on the yard. The guard told him to get back in line a few times before he approached him and told him to put his hands behind his back to be handcuffed. The inmate thought the guard was joking. It is unusual for a prisoner here to be sent to Seg for stepping out of line. The inmate resisted being cuffed, and when a fellow gang member saw the guard trying to cuff him, he pushed the guard to the ground. This, of course, compelled other guards to get involved, and they took both inmates to Seg.

After listening to this story, I put my ear to the phone--no dial tone. However, since I have been on C grade, I had been informed a new phone system had been put into place. Possibly I would not hear a dial tone, so I pressed a number of buttons and heard nothing. The phone lines had already been cut off. Normally, it takes staff an hour or longer to get around to turning off the phones when an incident occurs. Not today. Staring at the dead phone, I wondered if I had made a good decision hiring Jennifer. I also brooded about the legal process that had brought me to this point, and all the lawyers who had represented me over the years. Most of them were untrustworthy, and incredibly incompetent.

My first attorneys were Deborah Grohs and Dale Coventry. They were public defenders appointed to me by the court. Typically, I do not hold public defenders in high regard. However, I was very pleased by the two assigned to me. Deborah Grohs was an attractive, personable woman who believed in me. She was not burned out like many overworked public defenders in Cook County. Contrarily, she seemed passionate and very motivated. I appreciated that while I was being crucified in the news media and blamed for every crime under the sun (much like British Petroleum is now), she spoke out strongly in my defense. My later attorneys never spoke on my behalf, and the only statement ever made (that I am aware of) was said after my conviction. "We are very disappointed in the verdict." My life had been taken away, and my lead attorney was "disappointed".

With Dale Coventry, I saw a very intelligent and wise man. Almost immediately, he told me the crux of my case would come down to discrediting the claims of my interrogating police officer. He also told me prophetically, that a motion to suppress my alleged statements will fail regardless of how I prove my Miranda rights had been violated and that I was abused while in custody. No judge will throw out such evidence in a high profile case such as mine, and a judge would rather be overturned by a higher court on appeal than be seen by the public to be releasing a mass murder suspect.

I could tell that Dale Coventry had been in the system a long time, however, he did not seem to have lost his zeal. Contrarily, he seemed intrigued by my case. He was the head of the Public Defender's Capital Litigation Department, and he could choose which cases he worked on. I liked the fact that the head state's attorney quickly passed my case on to an assistant, while contrarily, the leading public defender chose mine. This was certainly a good sign, I thought. Had my parents not replaced Dale and Deborah, I believe I would not have been convicted. I regret quite often allowing my parents to switch lawyers on me, and today was no exception.

Despite how I felt about the lawyers appointed to represent me, my parents sought out other counsel. They believed that the public defenders were merely interim attorneys until they could procure private counsel. My parents have several friends who are attorneys, and were asking for their advice and recommendations. Thus, they contacted various attorneys and law firms. One showed a great interest in representing me--the huge law firm of Jenner & Block. They were even willing to represent me pro bono, or free of charge. Despite all the praise my trial judge would later shower on them, the caveat warning "you get what you pay for" came to mind. My parents, however, were jubilant that Jenner & Block was interested, and not merely because of the price.

My mother paid close attention to a high profile murder case that was in the news media not long before my arrest. Two parents from a southwest Chicago suburb had been charged with the murder of their 9-year-old daughter. The Dowaliby's were brought to trial, and although the judge dismissed the charges against the mother in a direct verdict, the father was convicted on little evidence. On appeal, David Dowaliby was represented by Jenner & Block. In just over one year, this powerful law firm was amazingly able to get the verdict overturned, and charges were dropped. A book and a movie were later made about that murder case, and the extensive news media coverage was to make a large impact on my mother. She was very impressed by the work of this law firm, and thought if they could do that for David Dowaliby, they could also do that for me.

My father did not pay much attention to the Dowaliby case. However, he was very concerned the public defenders would not, and could not, give his son's defense all the attention and care that a large law firm could. He also believed this prestigious law firm would have more clout in the courtroom than a couple of public defenders. My father's thinking was correct, but this in no way made up for the experience and skill of Deborah Grohs and Dale Coventry.

Long after my parents hired Jenner & Block, I learned my lead attorney had very little criminal law experience and had, in fact, only represented two other clients facing murder charges. The assistants he chose to work with him had even less experience than he did.

I did not like my new attorneys as much as my previous ones. My lead attorney was William Von Hoene, and although he would impress and charm my parents (particularly my mother), I was not so fond of him. He was friendly enough, but I never felt a personal connection with him. I thought what does this matter, however, so long as he is motivated to win? Bill Von Hoene was an ambitious person, and that was clear with his position as a partner at Jenner & Block. What did my opinion mean anyway? I was 18 years old at that time, and although I was a mature, independent, and self-confident teenager, my arrest and suspicion in numerous unsolved murders made me second guess myself. I relied on my parents heavily for my trial and subsequent appeals.

My trial attorneys reviewed my case thoroughly, and they did a meticulous job researching laws and filing pre-trial motions. However, when it came to trial, my lawyers were inexperienced and dropped the ball. In retrospect, I should have known they would be abysmal in the courtroom. Jenner & Block was not a criminal law firm, and did mostly corporation work. Their lawyers only worked on civil law except for an occasional pro bono case. They probably do well on direct appeals because all it requires is extensive research of the law and review of the record. Jenner & Block was a good fit for David Dowaliby, but terrible trial attorneys for me.

The most critical mistake my lead attorney was to make was in regards to trial strategy. It was incredibly foolish for Bill Von Hoene not to contest the interrogating officer's testimony. I was a teenager and not a lawyer, but even I knew this was a fatal mistake. During a short break when Von Hoene was in the middle of cross examining John Robertson, he came back to the defense table to review notes. I said to him, "What the hell are you doing? Get back up there and cut that lying cop down!" My lawyer told me to tone it down, and then went on about how great Robertson's testimony was!

After finishing with Robertson, I met with Von Hoene in the lawyer visiting room next to the courtroom, and told him how he had just convicted me. I told him it was now absolutely essential that I testify to refute that false testimony. It was imperative to tell the jury that I did not make those statements during my interrogation. My lawyer and I argued heatedly and Bill Von Hoene then threatened to withdraw from my case. He then sent my parents to see me to convince me to go along with his strategy, which was no strategy at all. He would not allow me or my alibi witnesses to testify. Other than a handwriting expert, he did not put on any defense. In his closing arguments he stunned me by telling my jury that I lent my car to Bob Faraci before he killed the victim, but it did not make me accountable for murder under the law. I knew I was doomed long before the jury came back with a verdict, and even after my co-defendant was acquitted.

Although promised to my parents, Jenner & Block refused to represent me on appeal. I think their collective heads realized my best arguments were their own ineffective assistance of counsel. A family friend then referred my mother to an appellate lawyer, Richard Cunningham. Cunningham had gained a good reputation representing people on death row while he was at the public defender's appellate office. Later in private practice, he had represented a number of death row inmates for free. He was strongly opposed to capital punishment and was a far left wing liberal. Being a liberal crusader earns you a lot of points in Cook County legal circles. However, as I should have known, it does not make you a good lawyer.

Although I gave Richard Cunningham a number of issues to raise on appeal, the appellate brief he ultimately filed was very limited. He told my parents it was better to have a few strong issues than many lesser arguments, and insisted on staying under the limit of 75 pages. I did not agree and thought many of my issues had just as much merit as his. However, I was not paying the bill--my parents were, and my mother heard nothing but wonderful things about Richard Cunningham. Years later, when his troubled son stabbed him to death, I learned about his problems with alcoholism from the news media covering the story of his life. Dick was dealing with many problems during the two years he worked on my case.

I was very disappointed when I saw the brief that Cunningham filed. There were a few good issues, but a few poor ones as well. Only six issues were presented to the court for review, and one of them he later conceded to being invalid. In retrospect, I could have filed the appeal he did, and once again, I should have stayed with the public defender. At least, the public defender would have been free. Unlike those he represented on death row, Cunningham charged my parents a hefty sum--money I could have certainly used on my proceeding appeals.

I believe Cunningham felt bad for filing a poor appeal and on top of it charging my parents so much that they had to make monthly payments to him for well over a year. He attempted to make up for it by filing a post conviction appeal free of charge, raising his own ineffectiveness of counsel on appeal. He forged my signature on the document, and unknown to us, he filed it under my name and prison address as a pro se petition. Richard Cunningham, or Dick, as friends called him, did me no favor. Dick forgot to attach affidavits which are required under the law. He also did not think that any and all court notices would be sent to me and could be lost in the prison system instead of being sent to him. When the court rejected the appeal due to the missing documents, it was many months later that we learned of it and the 30 days to produce the documents had already passed. When my mother found out, she complained to him. Dick said he was very sorry, but he had forgotten the rule about affidavits because it only applied to prisoners who were not on death row. Defendants who are sentenced to die do not have to attach supporting documents.

My post conviction was consequently dismissed by my trial judge. On appeal, I was automatically appointed a public defender. This one was no Dale Coventry or Deborah Grohs. Apparently you only get two good lawyers and after that it is the bottom of the barrel. Without even contacting me, this lawyer filed a Finley brief. A Finley brief is a document sent to the appellate court telling them that there are no meritorious issues, and he asked the court to be allowed to withdraw. The brief also tells the court to dismiss your case.

As soon as I received a copy of the Finley brief, I sent it to my parents and asked them to quickly find me a lawyer so my post conviction appeal would not be thrown out of court. At that time, there was a newspaper story about the release of an Illinois death row inmate named Anthony Porter. Porter was just days away from being executed when his execution was stayed and he was released from prison. His lawyer was Dan Sanders. The television news also reported the story along with the happy video of Porter walking out of prison. Once again, a high-profile case and exoneration made a big impression on my mother.

My mother contacted Dan Sanders and told him the urgency of my legal matter. He filed a brief in the appellate court, telling the court that the post conviction filed by Dick Cunningham did have merit, and he will represent me now. The court, however, had already dismissed my case. Dan Sanders was hired as my counsel, and he filed a motion requesting a rehearing. This was denied. My only other state appeal remaining at that point was to the Illinois Supreme Court. Sanders filed the obligatory petition for leave to appeal just so I could preserve my issues for the federal courts. The odds of the Illinois Supreme Court hearing your appeal, even when you have a natural life sentence, is less than 2%. Ironically though, all defendants facing death have automatic appeals to the highest court.

As expected, the Illinois Supreme Court refused to hear my appeal. Although I greatly appreciated Dan Sanders' attempt to get my post conviction appeal heard, I did not want him to represent me on my federal habeas corpus. A federal appeal is not only a state prisoner's last regular set of appeals, it is a prisoner's best chance. Federal judges are appointed, not elected. Thus, they are more free to act in accordance with the law and not consider what is politically popular at the time. I did not think Dan Sanders was a good lawyer. Although he was Anthony Porters' lawyer, he did not save him from execution. The work of the Medill Investigative Journalism students at Northwestern University was what led to Porter's stay and release. They were the ones who found the true culprit of the murder, and got the confession. Sanders merely typed up the new information and submitted it in court.

I told my parents repeatedly to hire someone else for my federal appeal. Time and again as my deadline for filing approached, I told my mother to find a different attorney. I even gave her a few names and phone numbers of other lawyers to call. All were referred to me by other prisoners and were well known and highly regarded. My mother finally contacted some of them, however, these lawyers wanted to be paid well--well beyond my parents' means. One of them wanted even more than they had paid Cunningham. Due to the expense and Dan Sanders' continual assurances to my mother, I was stuck with Sanders.

I should have studied the federal laws and filed my appeal pro se. I did not have to come up with any new issues. In fact, I could only use issues that were already raised and brought to the highest court in the state. All I had to do basically was restate those claims, and cite Constitutional Amendments. However, although the federal courts are more fair, they are more strict about filing rules. Many errors can be fatal on a federal appeal. I was not familiar with federal statutes.

Dan Sanders finally wrote and filed my appeal. However, he did not make any constitutional arguments or citations. In fact, he merely copied parts of my previous appeals in a federal format, and left the part for constitutional citations blank. He even forgot to pay the filing fees. The appeal was incomplete in various ways. It was the worst appeal I have ever seen, pasted together. However, what made it fatal was that Sanders filed it one day late. A prisoner only has exactly one year to file a federal appeal from the time of rejection by the state supreme court.

A few lawyers from the MacArthur Justice Center and Northwestern's Innocence Project then filed appeals for me. However, as mentioned before, federal rules are very strict. The higher courts did not care what excuse I had for failing to have the appeal filed on time. I had no right to effective assistance of counsel on a federal appeal, and one day late was just unacceptable. This was the end of my regular set of appeals. All that is left to a prisoner at this point is a clemency petition to the governor, or possibly a successive post conviction appeal if he or she meets a very narrow criteria.

After my federal appeal was dismissed as untimely, my parents were informed by a few attorneys that my only recourse was through Executive Clemency. Although I filed petitions for Executive Clemency, I also began to research the law myself and became convinced otherwise. I planned to write this appeal myself. All my prior attorneys had done me wrong. I did not trust my parents to hire another attorney for me, and I did not want to ask them for more money--money which most likely would be wasted. Although I thought I had issues that met the strict prerequisites for a second post-conviction appeal, I also knew that the odds of being successful were very small.

As I worked on my appeal, I discussed my work with my parents and sent them supporting case law. My parents insisted that I have a lawyer represent me rather than filing pro se. I had enough of bad lawyers, and wanted to do this my way. If I had done it my way from the beginning, I would not have spent the last 15 years in prison. This did not dissuade them, however, and they hired Professor Daniel Coyne from Kent Law School.

Daniel Coyne was not who my parents had initially wanted. They had their hearts set on a lawyer who was often in the news, has a prominent reputation, and who also taught at Kent Law School. This was Richard Kling. Years ago, my father spoke to Richard Kling about representing me. However, I told him, "No, I do not want Kling as my attorney." I did not want him back then, and I did not want him now, despite how his reputation had grown further still. Just because a lawyer is beloved by the media or wins a few high profile cases, it does not make him a good lawyer. A few prisoners told me they had him for counsel, and had fired him for various reasons. Furthermore, I trust what I heard from former clients more so than any television coverage. Ultimately, Kling did not take my case because he already had an enormous caseload. Instead, he suggested a colleague, Daniel Coyne, who had just been hired at Kent Law School and was not busy at the time.

I did not get along well with Professor Coyne. Before he was retained, I already had a plan of what I wanted to do. All I needed was for him to carry it out. However, Coyne is a head strong person who wants to do things his way. He also did not like my continued communication with other attorneys who were nice enough to give me advice and opinions now and then. He wanted me to have complete trust in him and that was just not going to happen. I have been the victim of one too many attorneys and the only person I will trust now is myself. Furthermore, Daniel Coyne was insistent on having all my transcripts re-read, and going at a snail's pace with my appeal. After a few years, all that had been done on my case, in fact, was the reading of my transcripts and his summations put on a disk. His students did all this work, and while I appreciated the thoroughness, I was not getting any younger. After my mother was to tell Coyne about information she obtained from a different attorney, he quit, saying there was now a "conflict of interest." I was glad--I had wanted to fire him for almost a year. Good riddance, I thought, when my parents told me the news. My family thought it was just an excuse created by Coyne to relieve himself of the extra workload and to keep the money they had prepaid him to file a post conviction petition.

As I watched prisoners being returned to their cells for lock-up, I wondered if it was time to rid myself of Jennifer Blagg. Although she was initially very enthusiastic and motivated about my case, it seems that after her retainment, this abated. She apologizes for delays, but still does not seem to have picked up her efforts. I have asked her to submit to me a checklist of what she plans to do in the months ahead, but she has ignored these letters. Unlike Daniel Coyne, I do like Jennifer. However, if possible, I do not want to still be in prison into my 40's. Every day in prison is a day closer to my death.