FOOD FOR THOUGHT PRT 15
Recently, last summer to be exact (June 2010) the U.S. Supreme Court reversed a decision from the 11th circuit court of appeals, Holland v. Florida 130 s. ct. 2459, saying his petition was untimely. The defendant showed that he did all he could so it would be filed timely, including sending several letters to his attorney asking him to file the appeal. A capital case, so the reversal was right on time!
These courts all over the country continue to blame and punish the defendant for the actions of the lawyers they themselves appoint to represent the defendants. Even after the U.S Supreme Court ruled in a majority opinion that the attorney’s conduct was unprofessional and grossly negligent, Justice Scalia and Thomas, two of the most right-wing extremist on the U.S Supreme Court’s bench, filed a dissenting opinion basically saying that Holland (the petitioner) was accountable for the errors of his attorney. In other words, if the lawyer messed up his appeal, as in this case, not filing the appeal in the time frame allowed, even if the client asked him to do so, numerous times, I this case, it amounted to begging him to, Holland should be denied relief and executed anyway?! Now keep in mind, this is the so-called best judicial system in the world! It should shock the conscience of the average Joe citizen.
Much too often, there is no evidence that counsel has familiarized himself with either the relevant law or facts of the defendants case sufficiently to make his representation reach acceptable constitutional levels. Strickland v Washington 104 S. ct. 2052 provides the standards for the effectiveness of counsel, so if your lawyer did raise an issue on appeal, but did not present it as a Federal constitutional issue (in other words he only briefed and argued the issue under state law and state rules of evidence and procedural etc.) under those circumstances, counsel’s performance was not objectively unreasonable, as required under Strickland, so because of that Lawyers either lack of knowledge, incompetence, ineffective. Now, here you are on death row, doing life or a bunch of years because of the Lawyers errors. That’s crazy!!!
Now don’t get me wrong, there are plenty of good lawyers appointed to represent capital cases and other cases in general that do an excellent job, especially with the very limited resources that the courts allow, I’m not talking about them, I’m talking about the ones that don’t prepare themselves, go to sleep during the proceedings, get high during the trial and a host of other things that I don’t even have space or the time to get into now. I’m talking about the lawyers that fail to recognize, properly brief and preserve the relevant issues during their representation causing meritorious issues to be overlooked, resulting in prejudice to the defendant’s case, and an overall miscarriage of justice. Often this stuff is so blatant that any meaningful opportunity for review is lost or waived for any kind of consideration later on down the line. Im talking about the lawyers that fail to investigate, develop and present evidence that is needed to rumble with the prosecutor that won’t hesitate to use every trick in the book to obtain a conviction and sentence of death.
The appointed Counsel basically manages the case and does his how thing when it comes to trial strategy etc. The defendant at times may suggest things that he wants done, but is basically dependant on the lawyers training, experience and knowledge of the law, to protect his constitutional rights and overreaching of the state, but much too often, the lawyers appointed to the case and judge’s assigned, that are supposed to be impartial and neutral arbitrators, are mere extensions of the prosecution!!!! TO BE CONTINUED …….Intensify the struggle.
(C)Robert Fisher. P.A
Recently in Feb. 2011, Anthony Graves, a Texas man recently released from prison, after serving 18 years, 14 of them on death row, for a crime he didn’t do, was denied compensation due to a legal glitch. In order for him to be paid for being rail-roaded and wrongfully convicted, the words “actual Innocence” had to be on the court order. The state of Texas has a compensation law that gives up to $80,000 a year for people they jerked around, but only if the person is found innocent in a retrial or given a pardon. Because the State decided to dismiss the charges against Graves, instead of retrying him, he can’t be found innocent, and can’t be given a pardon because the original charges aren’t even there any more, since they were dismissed. Graves would have been entitled to 1.4 million, if they hadn’t found that loop-hole or a way to deny him the mere peanuts (compared to what he and his family had to endure all those years) DNA cleared Graves so Lottie, Dottie and everybody knows and isn’t denying he is innocent, including the judge, prosecutor and defense. Texas has a pattern of getting as many convictions they can get, by any means necessary and often having to pay out millions. ($30 million to date for 67 other wrongful imprisoned people down that way) but doing the right thing is another question. ******UPDATE*******
Well now, after several weeks of public outcry and numerous motions to the court, I just recently saw on CNN, on the ticker-tape, that a judge did indeed add the word “Innocent” to the court order of Graves’ opinion, I haven’t heard any other details but, now hopefully he can get the 1.4 million in compensation he is due, it may sound like a lot of money to some, but in my view, it doesn’t anywhere near make up for all those years taken out of his life, especially all the crap he had to endure in the Texas dept. of Corrections, where they are working with that “cool hand Luke” stuff and I’m speaking first hand because I experience some of it myself working in the fields in their prison system from 1973-1975. Its crazy down that way, to say the least!!!! *******UPDATE********
There is another update on the “Hank Skinner” situation, another death row prisoners, I talked a little about the in the “FOOD FOR THOUGHT article 6 where the prosecutor has been fighting tooth and nail to deny him a DNA test. Just recently in the first week of March 2011, the U.S Supreme court rules that Skinner must be allowed that test, so some progress is being made. It’s crazy, but a lot of prosecutors, judges, Governors, etc. are more concerned about advancing their political careers, than actually seeking justice. Many of them just want to fill up their score cards, for courtroom victories, especially for a capital case conviction. There isn’t such a thing as an even playing field, most of them want to stack the deck against the accused to insure a victory. No one including me is suggesting that they make it easy for people that are accused of a crime, but it isn’t necessare to stack the deck for a conviction. We all should expect the guilty to be convicted and the innocent to ho free after a fair trial, but not a loop sided trial geared to convict and that’s what is happening much too often in the courtrooms across the country. A lot of the miscarriages of justice that jump off routinely could be avoided. I understand the average citizen is scared about all the crime jumping-off in our communities and rightfully so, but the politicians don’t help matters any by all the rhetoric they pop-off, I a tuff on crime mode. Locking more people up than any other country in the world, but not coming up with any positive solutions that will prevent some of the crime and change the life situations of many that resort to crime, rather than contributing and being a productive member of society. Anyway, back to the part about having an even playing field, a lot of this starts in the jury selection process. I’ve already talked about denying blacks and other minorities from serving on the juries in a previous article, so I won’t get into that part right now, although there is plenty more to say about that, but there are other aspects of the process that is crazy and out right unfair. The so-called concept of our jury being drawn from a fair cross selection of the community is a joke, to put it nicely. The purpose of the accused being judged by a jury f this peers, guarding against the exercise of arbitrary power of the state, by common sense judgement of regular people in the community is not a privilege, it’s a constitutional right given to every citizen in this country.
TO BE CONTINUED
Power to the struggle!!!
I want to continue where I left off in the last article talking about some of the stuff that jumps-off in the jury selection process that helps to make the process and results loop-sided and unfair, but first I’d like to talk, for a minute, about the kind of people running our system. Most of the prosecutors and judges have aspirations and agendas of moving on up the political ladder, on to attorney general, governor, then some even on to the national level, house, senate and president. For example the governor now in this state (penna.) Gov. Corbert was the attorney general for this state, recently. The governor that he placed (Rendell) was mayor of the city of Philadelphia,P.A, prior to Governor. He just left office in Jan.2011, and wrote a letter to the state general assembly a few days before he stepped off, acknowledging that our death penalty is irredeemable broken. That the state of Pennsylvania leads the country in death sentence reversals!!! He mentioned how the courts found plenty of mistakes, so significant that required a new trial or sentencing hearing, He also pointed out numerous other reasons why the death penalty should be ended, but didn’t have the courage or will to do something significant about it!!! Keep in mind, this same Governor had the power to commute all the people in this state’s death row, from a death sentence to life in prison and our appeals would have still continued in the courts, if they haven’t been exhausted. He didn’t need any vote from the state congress or approval from anyone else. He had the power to do it without any input form anybody what-so-ever, but he did not and would not because he wants to continue his political career on the national level. He is a lifetime politician and it would have been disastrous for his career. Instead of him being a thoughtful, considerate person, acknowledging all the flaws in the system, that he himself revealed. This is what we are working with, not only in Pennsylvania, but in America!!!
Back to the judge selection process continued from article 16, The constitution demands certain safeguards to protect the little guy from the strong arm of the state. A Jury of your peers is suppose to mean the average citizen just like you to make a judgement after hearing the evidence. This doesn’t mean an overzealous prosecutor systematically eliminating blacks and other minorities and people that don’t fit into their idea of people ready to convict, no matter what evidence or lack of evidence is thrown before them. In our jury selection process there are two ways a perspective juror can be struck off of a case being tried. One is for what they call “cause” and the other by use of a “peremptory challenge” however both can be misused and oh too often are!!!
During voir dire (when perspective jurors are asked questions by the prosecutors, defence lawyers and judge to see if they are qualified and eligible for service) In a capital case each side normally gets about 20 strikes (peremptory challenges) to kick-off a juror for various reasons and there are an unlimited amount of strikes for cause, if the judge agrees with your position for that challenge. Some of the reasons for striking for cause are: the juror is related to the victim, defendant, judge, prosecutor, lawyer or anyone else involved with the case, they may benefit from the outcome of they cannot, under any circumstances vote to execute someone,if it’s a capital case. There are many other reasons for cause, but these are a few of the most common. In regard to peremptory challenges, after various questions, by each side, if either side feels they won’t be favorable to their position, they use a challenge, but some of those prosecutors got so bad and blatant with their stuff in eliminating blacks from the jury, a U.S Supreme court decision came down in 1986 called “Batson V Kentucky” 106 S.ct 1712 that made it mandatory for prosecutors to give a race-neutral explanation for challenging black jurors.
TO BE CONTINUED….
In the next or one soon after, I hope to talk about how a prosecutor in Philadelphia, a while back, gave classes and seminars to other prosecutors in Pennsylvania to teach them how to get around the U.S Supreme court decision and continue to get rid of blacks and others!!!!
The Struggle continues …..
The following article was recently written by Marc Bookman, in regard to a letter then, Governor Ed Rendell wrote to the State General Assembly in early Jan.2011 before leaving office:
Food for Thought Prt 18
At this time I’ll continue from the last article about the unfairness in the jury selected process. Most Americans and people around the world are naive, thinking that the criminal justice system is fair. Most don’t think police will plant evidence, commit perjury on the witness stand or any of the other despicable acts that occur on a daily basis, to ensure a conviction. Most don’t believe prosecutors will use perjured testimony, withhold favourable evidence from the defense or a host of other tactics to ensure a courtroom victory. The only people that are aware of this is the people that have been through the system on the receiving end of the stick and normally people that have been in the system, never get on the juries that decide these cases. Only people in society that never been to prison serve on these juries, so most of the time these tactics go undetected.
I’ve previously mentioned how many of our prosecutors and judges often want to further their political careers, moving up the ladder to higher positions, etc. It just so happens this was the case of prosecutors in Philadelphia a while back or this story would have never got out and no one would have known the low-down dirty tricks that jumped – off for a long period of time in the Pennsylvania courtrooms.
In 1997, Jack McMahon, the assist. D.A, who prosecuted and sent several people to death row, won the Republican nomination to challenge incumbent D.A. Lynne Abraham. On March 31, 1997, eleven days after the primary election, Abraham released a video tape from the late 1980’s which showed McMahon giving a training session on jury selection, to other prosecutors in the D.A’s Office. In the tape McMahon makes a number of highly inflammatory comments, implying that he regularly seeks to keep qualified African Americans from serving on juries. This is crazy, somebody should transcribe the contents of this tape in it’s entirety and put it on the internet, so the whole world can see exactly what we are working with in this so called best judicial system in the world, I’m telling you, you’d be shocked!!! McMahon discusses on video how certain categories of people, like smart people, lawyers, social workers, teachers, doctors, etc, but the group he discussed the most were blacks.
Through the contents of the training videotape, it’s established in the prosecutors own words, not only that McMahon was of mind to discriminate, but also his contemporaneous admissions to a consistent practice of racial discrimination in every case he tried. In the tape, it says the purpose of Voir Dire, namely to select a fair and impartial jury is ridiculous, in favour of the selection of jurors who will be biased in favour of conviction, various racial and gender stereo types are described and offered as reasons to discriminate in the selection of jurors, techniques for accomplishing such discrimination are described in detail, including the maintenance of tally of the race of the venire panel and invention of petexture reasons for exercising peremptory challenges, and a willingness to deceive trial courts, to manipulate jury panels to these ends is also expressed. He says black women are very bad, they got two minorities, they’re women and they’re black, so they’re downtrodden in two areas. He advises to question black jurors at length, so you have more ammo to articulate a reason for striking them, so it doesn’t look like it’s for race. He repeatedly advises his audience to use peremptory strikes blacks from serving on criminal juries. He specifically describes, in the tape his practice of striking all black potential jurors from low-income neighbourhoods, especially young and old black women. Realizing that these practices were in direct conflict with “Batson” he also described techniques which could be utilized to avoid detention. Many of the practices described in the tape are blatantly discriminatory on their face. Even the Pennsylvania Supreme Court found this and overturned a few of his cases, but they allowed many others to stand. The Pa. Supreme Court stated: We condemn in the strongest terms the practices described in the transcript of the McMahon tape, which flout the constitutional principles in the highly flagrant manner. The federal district court similarly condemns the jury selection practices described in the McMahon tapes also.
McMahon’s actions, not only effected the case he personally tried, cases tried in the Philadelphia court dockets, but also cases in all the surrounding counties in Pennsylvania, where he was indirectly involved due to his classes and seminars he gave to other prosecutors to show exactly how to lie, scheme and jerk around the defendants, the court, system and citizens in this country. As you know, the proceedings must not only be fair, they must appear fair to all who observes them. He basically thumbed his nose at the whole process. Why isn’t he serving time for his actions? Why was he allowed to get away without prison time for those deplorable acts? This chump is a criminal and should have been prosecuted to the fullest extent of the law!!! The sad and scary part about it, is there are many more Jack McMahon’s out there pulling similar stunts in these courtrooms daily!!!
See Tapes below –
To be continued. Power to the struggle!