Feeling The River Flow- Dean Evenson

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Short Film- The Last Smoke

Habeas Corpus Explained

written by Masoninblue and reblogged here with permission from frederickleatherman.wordpress.com.

DISCLAIMER: I have presented a general overview of habeas corpus for lay persons interested in knowing more about it. Habeas corpus is a complicated area of the law and my summary only scratches the surface, so to speak. I have provided background information, not legal advice. Readers should consult with an experienced habeas lawyer, if they require further information or assistance.

The writ of habeas corpus, also known as the Ancient Writ because it originated in England during the Middle Ages, literally means an order to produce the body.

In modern practice, the writ of habeas corpus is an order issued by a judge in the legal district where a prisoner is incarcerated and it is served on the person in charge of the facility in which the prisoner is serving the sentence, typically a warden. The order directs the warden to produce the prisoner in court at a specific date and time for a hearing regarding whether there is a proper legal basis for the prisoner’s incarceration.

The prisoner, or someone acting on the prisoner’s behalf (i.e., typically a jail-house lawyer or a lawyer), prepares a petition (i.e., a request) for a writ of habeas corpus alleging facts by sworn affidavit and making legal arguments that, if true, would constitute a confinement in violation of a constitutional right requiring the court to issue an order releasing the prisoner or granting a new trial.

Every person in this country has a Fifth and Fourteenth Amendment constitutional right to due process of law with the odious exception of the recently enacted National Defense Authorization Act, or NDAA, which authorizes the military to seize and indefinitely detain any individual in the world no matter where situated — including citizens of the United States — pursuant to an order issued by the president. The president also claims to have the power to order people assassinated and has exercised that power at least twice that we know about. The constitutionality, legitimacy, and morality of those claims are beyond the scope of this article.

The Due Process Clause, as it is called, of the Fifth Amendment applies to people prosecuted by federal officials (i.e., United States Attorneys or Department of Justice lawyers) for violating federal crimes while the Due Process Clause of the Fourteenth Amendment makes the Due Process Clause of the Fifth Amendment applicable to people prosecuted by state officials (i.e., a state prosecutor) for violating state laws.

Due process of law generally means people have a constitutional right to a speedy and public trial before an impartial jury in the jurisdiction where the crime was allegedly committed. Due process also includes the Sixth Amendment right to be represented by a lawyer and, if the person cannot afford a lawyer, the court must appoint a lawyer to represent the person at public expense. The accused has the right to confront accusers through cross examination and the jury must presume the accused to be innocent unless the prosecution unanimously convinces the jury beyond a reasonable doubt that the accused committed the crime or crimes charged. The accused cannot be required to testify and may remain silent during the trial. The accused is entitled to have the court instruct the jury that it may not consider silence as evidence of guilt.

If the jury finds the accused guilty, he or she has the right to appeal the conviction. This is called the right to a direct appeal, which is an appeal based on all matters of record (i.e., official transcripts of all proceedings in court prepared by court reporters, or videos of those proceedings). The right to a direct appeal also includes the right to be represented by counsel.

The federal judiciary has a court of last resort called the Supreme Court and intermediate appellate courts called circuit courts of appeal. Similarly, all states have a court of last resort, or Supreme Court (except New York which inexplicably calls its trial courts supreme courts and its court of last resort the Court of Appeals). With the possible exception of a few sparsely populated states, the states have intermediate appellate courts called courts of appeal.

In practice the right to a direct appeal means the right to appeal to an intermediate appellate court and, if the conviction is affirmed, to seek discretionary review of the decision by the Supreme Court.

Discretionary review means the Supreme Court has the power to decide whether to review a decision by the intermediate appellate court.

And now back to habeas corpus. Because of all the rights that I have briefly mentioned and explained, the writ of habeas corpus does not generally come into play until after the right to a direct appeal has been exercised and exhausted leaving the prisoner without a further legal remedy. Practically speaking, this means that a prisoner would not file a petition for a writ of habeas corpus until after he or she lost the direct appeal and the Supreme Court denied review, or affirmed the Court of Appeals, assuming it granted discretionary review.

By the way, the Supreme Court of the United States, or SCOTUS, calls the application for discretionary review a petition for a writ of certiorari.

Notice that I have referred to direct appeals as a method of appealing decisions by the trial court, including jury verdicts, based on appellate court review of matters for which there is an official transcript or video to review. What about matters or issues for which there is no official transcript or video to review?

That is where habeas corpus comes into the picture in modern day legal practice. Briefly, the petition for a writ of habeas corpus is a formal legal request asking a judge to review issues or matters for which there is no official record available to review.

What sort of issue might that be?

As I said earlier, due process of law includes the Sixth Amendment right to be represented by counsel. That means “effective assistance of counsel” and the SCOTUS in Strickland v. Washington, 466 U.S. 668 (1984), defined that term as competent representation according to the standards of legal practice in the jurisdiction at the time and the failure to provide such representation must have been a “material” defect (i.e., it affected the outcome).

Why would an ineffective-assistance claim not be a matter of record?

Let us take a look at the infamous death penalty case of the sleeping lawyer. In Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001), the federal Court of Appeals for the Fifth Circuit held that Mr. Burdine was denied effective assistance of counsel because his court appointed lawyer slept through much of his death penalty trial. Mr. Burdine could not support his claim against his lawyer by relying on the official court record because, not surprisingly, it did not state when the lawyer was asleep. Mr. Burdine had to rely on affidavits (i.e., sworn written statements) of people, including himself, who witnessed the lawyer sleeping during the trial.

Ineffective-assistance claims are allegations that the lawyer did or failed to do something that the applicable professional standards prohibited or required the lawyer to do. In Mr. Burdine’s case, that was the basic obligation to be awake, paying attention, and participating in the proceedings. The vast majority of these claims can only be established by affidavits from witnesses and experts (e.g., other lawyers) that, if true, would constitute an actionable claim for ineffective assistance of counsel.

In the typical case, the prisoner or his representative files the petition with supporting affidavits and legal argument. The opposing party, be it the state or federal prosecution, usually responds with a motion to dismiss the claim on the ground that, even if the court assumes for the sake of argument that the factual allegations in the petitioner’s affidavits are true, they do not state a claim for which relief can be granted.

Judges dismiss many habeas claims on this ground. This is not surprising since most petitioners are representing themselves because they cannot afford to pay a lawyer.

The only exception is death penalty cases. Due to the finality of the penalty, courts will appoint counsel in habeas cases and this is why most successful habeas claims occur in death penalty cases. Errors in other cases are just as egregious, if not more so, but the claims are not adequately presented to survive a motion to dismiss.

If the court denies the motion to dismiss, it will appoint counsel for an unrepresented petitioner and the prosecution will answer the petition with its affidavits and supporting legal argument. If the prosecution disputes the factual claims presented by the petitioner, the court will issue the writ and order the warden to produce the petitioner at an evidentiary hearing at which the court will decide the disputed facts.

If the court decides for the petitioner, it usually orders a new trial. If it decides for the prosecution, it will issue an order denying the claim.

The petitioner can appeal a decision denying the petition.

The most common successful habeas claim in death penalty cases is an allegation that defense counsel failed to adequately investigate the petitioner’s past history to discover mitigating evidence that should have been presented for the jury to consider during the sentencing phase of the trial. Mitigating evidence is any evidence about the petitioner or the crime he committed that in fairness or mercy warrants a sentence of less than death.

Another basis for a habeas claim would be newly discovered evidence, such as a DNA post-conviction exoneration.

Finally, a person is limited to only one habeas corpus petition in state and federal court. Successive petitions are generally prohibited and a failure to assert a particular claim in a state habeas petition constitutes a waiver of that claim in a federal petition. A person also must exhaust habeas claims in state court before filing for the writ in federal court.

DISCLAIMER: I have presented a general overview of habeas corpus for lay persons interested in knowing more about it. Habeas corpus is a complicated area of the law and my summary only scratches the surface, so to speak. I have provided background information, not legal advice. Readers should consult with an experienced habeas lawyer, if they require further information or assistance.

Cross posted from my law blog.

Christie: Frog Gravy 85

Frog Gravy is a nonfiction incarceration account.

Inmate names are changed.

I have found the paradox, that if you love until it hurts, there can be no more hurt, only more love.
-Mother Teresa

McCracken County Jail, Spring, 2008

Christie has been denied drug court for her nonviolent drug-related charges, and issued a 24-year sentence. Her treatment denial was based on one of three counties wanting her to do time, rather than engage in the rigorous monitoring of drug court.

Drug court is not a joke, nor is it a get-out-of-jail-free card. The person must be employed, and available for drug testing on the spot, at any given time of the day or night. The person calls on the telephone, twice a day, to report to a counselor. In-court meetings are required, as are, I believe, twelve-step meetings. Drug court is time-intensive, and heavy with documentation. In order to be considered suitable for drug court, the candidate must plead guilty to her crime, and must agree to serve a lengthy sentence if, for some reason, she fails to follow the rules to the letter.

Here are ten essential components of drug court, from wiki:

The 10 Key Components

Drug Courts integrate alcohol and other drug treatment services with justice system case processing.

Using a non-adversarial approach, prosecution and defense counsel promote public safety. Participants must waive their due process rights to a speedy trial and sign a pre-emptive confession before being allowed to participate.

Eligible participants are identified early and promptly placed in the Drug Court program.

Drug Courts provide access to a continuum of alcohol, drug and other related treatment and rehabilitation services.

Abstinence is monitored by frequent alcohol and other drug testing.

A coordinated strategy governs Drug Court responses to participants compliance.

Ongoing judicial interaction with each Drug Court participant is essential.

Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.

Continuing interdisciplinary education promotes effective Drug Court planning, implementation, and operations.

Forging partnerships among Drug Courts, public agencies, and community-based organizations generates local support and enhances Drug Court effectiveness.[3]

Drug court is notable in the inmate community for what happens to inmates who relapse. They can end up serving more time than they ever possibly imagined, more time than killers, even. For this reason, some inmates who truly want to get clean and sober, but who have a tendency to slip and slide during this process, will choose to do the time instead. I have seen some spectacular drug court failures. Inmates who get served out on a sentence behind drug court failure consistently report regret.

There are also some wonderful drug court success stories. Here is the site with more information. People who successfully complete the rigors of drug court often become mentors in the recovery community.

Shortly after Christie was denied drug court, she was shipped to prison, and while I was happy that she was going to a better place than the jail, her departure broke my heart. Never in my adult life had I been close to women, but in this disaster situation, I came to love Christie (and Tina) like sisters. Later on during my incarceration, after my fake release on parole, Christie, Tina and I will spend time together in prison, at PeWee Valley KCIW.

I cried when Christie left. Such is the nature of incarceration. You exchange the most intimate details of your lives with each other and then….poof. They’re gone. After a while, you learn not to get too close to anybody. People may think that you are arrogant, but really, it is a simple matter of self-preservation.

After Christie leaves, I keep to myself and write. This morning, I did some standing-in-place exercises. Then I read Wisdom 3:1-12. For breakfast we had eggs, one slice of toast, cream of wheat, sausage and half a banana. I write everything down, inane, meaningless stuff, to keep from coming apart with grief. For lunch we had chicken, one slice of bread, corn, peaches and cole slaw.

Harry is screaming for help from his isolation cell and I am having difficulty focusing on my notes.

One time, Christie and I fashioned chess pieces out of scavenged paper scraps from the cell. We drew a chess board onto the steel table with a bar of soap, and then we played chess. That made my day.

A while after Christie departed, she wrote me. Inmates are allowed to write each other, but I have not been allowed to contact Christie since my release on parole (I asked my officer about this). I miss her, and so I have her letter, and I read it over and over, even now.

She starts with: “What the hell? How come you haven’t wrote me yet?”

I have an answer. The answer is, it is just too painful. All of this. It’s just too much.

Anyhow, I did get a kick out of her description of some of the men who responded to her trick ads:

…some interesting individuals- one in Oregon, NM, Colorado, Maine- is very interesting. He is a marathon runner. Speaks Italian and French- very smart. One from Texas. He looks like he came straight out of that movie “Revenge of the Nerds…”

In prison, Christie, Tina and I discussed Frog Gravy at length. This memoir would not exist without these two wonderful women. Disaster brought us together. Disaster taught each of us a little more about love, and how it feels to lose something that matters to you. It is probably safe but sad to say that disaster taught us each a little more about being women. And I am grateful for the lesson.

Thirty Seconds To Mars- This Is War

Attack Of The Plastic Bag

Today my husband and I got on our bikes and rode into town, to pay our bills and visit the unemployment office. Due to the unchanging climate change, it is possible to ride bikes all over town, in the dead of winter, and so today, we did not leave our carbon footprint on the earth. At least for a while.

No one will hire me, even to make sandwiches, because of my record. So I wrote Frog Gravy. But that’s another story. Today I read the classified section of the local newspaper, and I saw a horticulture job advertised, and since I got straight As in Horticulture while I was in prison, I figured, well, I’m perfect for the job. So, I made a planned stop at the unemployment office. The place was packed. And dead silent.

After I filled out all of the paperwork explaining my whole life, and after my husband finished paying bills, we met each other on our bikes and began our homeward journey.

I ride a Mongoose with a kickstand and a rusted chain that I bought on sale at Walmart one time. It’s yellow. Yeah. And he rides some kind of a Raleigh dueling-suspension for lack of a better term, road bike. Or maybe it is a mountain bike, but anyway, I got that one from Goodwill one time. It’s silver. Uh-huh.

So, we’re riding down the street in downtown Paducah, just a stone’s throw from McCracken County jail, where I was once a guest. All of the sudden, my bike just stopped dead. It was as if someone chocked the tires, in mid-cycle.

Stay with me here, this is the truth. I nearly flew over the handlebars. Here is what happened: A one-gallon-sized zip lock plastic bag had entangled itself in the, what’s that thing called? The derailleur. It bent…listen to this…It bent the derailleur, and placed the thing over the top of a spoke in the rear tire, without bending the spoke.

So much for my bike. The wheel won’t budge. We are miles from home. Crap like this only happens in my life, it seems.

Anyway, along came a man named Bill, straight from God, he was, and Bill gave us a ride home. Thank goodness. We need more kind people in the world like Bill! Thank you so much, Bill. We will do our best to pay it forward and we will never forget you.

I may look for another bike at the recycle center, where I plan to take my ruined bike.

So that is why I did not write a Frog Gravy today. You think that’s funny, do you? Yeah. Laugh it up. There’s more. Our African Grey parrot knows it’s gonna be Spring soon. So, his internal clock went off, and he is, once again, sexually active. Thank goodness he is bonded to my husband’s hand and not to me.

Have a look at this video. Laugh yourself sick. Also, if y’all are into prayer, somebody please pray for me to get a job soon. Thanks!

Dynamic Diagrams

Click on this cool link below.

http://www.dynamicdiagrams.com/wp-content/uploads/2011/04/orrery_2011_bce.swf

CPR Basics [edited]

Video under 2 minutes How to do CPR on an adult.

NOTE: This addresses adult CPR.

From CDC is a statement about one of the major changes in current CPR practice:

From CDC:

“Out-of-hospital cardiac arrest (OHCA) is a leading cause of death among adults in the United States. Approximately 300,000 OHCA events occur each year in the United States; approximately 92% of persons who experience an OHCA die (1). An OHCA is defined as cessation of cardiac mechanical activity that is confirmed by absence of signs of circulation and that occurs outside of a hospital setting (1,2). While an OHCA can occur from multiple causes (i.e., trauma, drowning, overdose, asphyxia, electrocution, primary respiratory arrests and other noncardiac etiologies), the most (70%–85%) of such events have a cardiac etiology (3–6).”

Please take a moment to view the video. Cardiac arrest is most commonly due to a cardiac-related event, but it can also be caused by trauma, ingested substances or a variety of other issues. A witnessed cardiac arrest can increase survival chances.

Disclaimer: I am not a physician, nor do I represent the AHA, CDC or any other organization. I do have CPR and ACLS experience. I welcome feedback and shared experiences.

Here are some steps to take. These steps may not be in the order that you would first consider.

1. CALL 911 or call for help, and do not endanger your life, ie, enter a burning building.

2. The guidelines are now C-A-B and not A-B-C. Circulation is the first priority. Airway clearance is next, then breathing facilitation. In other words, chest compressions and blood circulation is now the evidence-based first-response standard of practice.

These guidelines are from wiki, and are American Heart Association based: Read the section!

1. Check the scene for danger, but if you cannot remove the danger, carefully remove the victim form the danger.


A few things need to be added here. [hat tip cmaukonen]

First if the situation is do to electrical shock, DO NOT TRY TO MOVE THE VICTIM OR TOUCH THE VICTIM UNLESS YOU ARE SURE THE VICTIM IS NO LONGER IN CONTACT WITH THE SOURCE OF THE ELECTRICITY.

Check out the area completely ! Make sure the area is not wet. Water conducts electricity fairly well.

If the area is dry, then attempt to locate a non-conductive pole, either wood or plastic that is dry and attempt to move the source of electricity. And kill it at a main circuit breaker if possible.

Remember it’s the current that kills !

2. Check the victim for consciousness: “Can you hear me?” or “Annie, Annie (or whatever the name) can you hear me?”

3. Call 911 in North America, 000 in Australia, 112 by cell phone in the EU (including the UK) and 999 in the UK. CALL FOR HELP.

4.Check the victim’s pulse. Do not spend check for more than 10 seconds, attempting to find a pulse. If the victim does not have a pulse, continue with CPR and the next steps. Please read manual.

5. Perform CPR for one minute (which is about three cycles of CPR) and then call the EMS before resuming with CPR. If possible, send someone else to get an AED (Automatic External Defibrillator) if there is one in the building. CPR=chest compressions.

6.Remember CAB: Chest Compressions, Airway, Breathing. In 2010, the AHA changed the recommended sequence to deliver chest compressions before airway opening and rescue breathing

Steps 7-11 in wikihow detail how to do the chest compressions.

Here is the site again:
http://www.wikihow.com/Do-CPR-on-an-Adult

It is good to be up-to-date, because the American Heart Association makes changes to CPR every five years or so, and the changes are evidence, study, and data-based.

From wiki:

“Classification

(added by author: AED- automatic defibrillator device- will examine the patient’s rhythm, and verbally tell the person performing advanced resuscitation when to shock, based on the rhythm.)

Cardiac arrest is classified into “shockable” versus “non–shockable”, based upon the ECG rhythm. The two shockable rhythms are ventricular fibrillation and pulseless ventricular tachycardia while the two non–shockable rhythms are asystole and pulseless electrical activity. This refers to whether a particular class of disrhythmia is treatable using defibrillation.[7]
[edit]Signs and symptoms

Cardiac arrest is an abrupt cessation of pump function in the heart (as evidenced by the absence of a palpable pulse). Prompt intervention can usually reverse a cardiac arrest, but without such intervention it will almost always lead to death.[1] In certain cases, it is an expected outcome to a serious illness.[8]
However, due to inadequate cerebral perfusion, the patient will be unconscious and will have stopped breathing. The main diagnostic criterion to diagnose a cardiac arrest, (as opposed to respiratory arrest which shares many of the same features), is lack of circulation, however there are a number of ways of determining this. Near death experiences are reported by 10-20% of people who survived cardiac arrest.[9]“

I thought it would be nice to do something akin to a ‘See-One-Do-One-Teach-One’ series of helpful topics for the lay public.

Fallingwater

Frank Lloyd Wright:

Jailhouse Lawyers: Frog Gravy 84

Frog Gravy is a nonfiction incarceration account.

KCIW PeWee Valley, 2008-2009

Do not be fooled by the term. ‘Jailhouse lawyers’ are sometimes, in fact, attorneys or paralegals. At the very least, jailhouse lawyers are knowledgeable about criminal law and criminal procedure. Jailhouse lawyers aid in civil matters as well, and they are invaluable assets in the inmate population. In prison, the jailhouse lawyers have probably received some formal training, and their client advocacy and work product often surpasses that of outside lawyers. I remember reading one remark out of the Court of Appeals, where an inmate was arguing incompetence, and the court pointed out that his pleading was more articulate than some of the things they see from real lawyers.

My first goal, on arrival at the prison, was to pursue legal training so that I could help fellow inmates in producing various legal pleadings. I viewed inmate legal assisting in prison as roughly akin to ‘ditch medicine’ from a legal perspective, in that I could envision no better place to get legal experience than in the trenches of prison. Unfortunately, the legal aid training program was eliminated shortly after my arrival.

People who cannot afford to retain counsel, and that is almost everybody, receive court-appointed counsel for the handling of their cases. The public defender lottery is hit and miss. Since public defenders handle many cases, and many egregious cases at that, they do tend to have the best experience. That they handle so many cases, however, can lead to ineffective assistance of counsel.

The right to counsel on appeal ends when the direct appeal has been decided. Then, to pursue the state habeas (in Kentucky this is called a RCr 11.42 Motion to set aside the conviction), which generally amounts to an ineffective assistance of counsel claim, is something that each inmate must do without counsel. Most inmates, many of whom cannot read or write, do not have the faintest idea how to do that. That is where the jailhouse lawyer comes in.

While the appeal is pending, the jailhouse lawyer may function in the capacity of a legal adviser.

Jailhouse lawyers at PeWee helped me file some open records requests. I wanted to know, for example, if the Commonwealth was hiding an exculpatory blood test. I was initially told that the lab in Kentucky sent my blood to a lab in Pennsylvania. This was the same thing as being told that the Commonwealth did hide an exculpatory blood test. Later, the lab frantically retracted the statement, and after that, my open records requests for bench notes, Fedex shipping requests, and for police procedure for handling evidence were summarily denied.

Still, I was grateful for the help and amazed, given the tiny law library that the legal aid department had to work with, at the quality of work that the inmates did do in prison. In the beginning, I mistook the jailhouse lawyers for prison staff. Inmate attorneys in prison maintained honor status and held coveted jobs, as well as the best of dormitory housing.

One inmate lawyer was shy and studious in a way that made me initially think she was condescending. After getting to know her better, I got the impression that she was chronically depressed, and sick with remorse for her crime. She was a teacher, who had taken a young student to Mexico, with plans to marry him. This did not sit well with the boy’s family and so, she received just two years more than I did: ten years. At some point, she appealed to the higher court for sentence leniency, but her appeal was denied. She is free today, after having served 85% of ten years.

The other inmate lawyer who was extremely well-written and articulate was serving time for murder and had been in prison for twelve years when I arrived. While I did not interact directly with her in the legal aid department, I admired her intellect and her strength. In my first job on landscape, she was my boss, and it was several weeks before I realized that she was an inmate. One day, she came before the parole board for parole. The board deferred her for twenty years. Her voiced concern on receipt of this devastating news was for her family.

I was so shocked at hearing of such a lengthy deferment that I asked my friend Christie (from McCracken) about it. Christie told me that here, in prison, I would likely see lengthy sentences, life sentences, and deferments that would amount to life sentences.

In the prison setting, jailhouse lawyers are the last bastion of hope for inmates who seek conviction reversal, and they are the go-to lay experts on ineffective assistance of counsel.

Given that in-house training programs are disappreaing due to lack of funding, where does this leave the indigent, the illiterate, and the mentally ill incarcerated?

The Supreme Court recognizes the importance of jailhouse lawyers:

The term can also refer to a prison inmate who is representing themselves in legal matters relating to their sentence. The important role that jailhouse lawyers play in the criminal justice system has been recognized by the U.S. Supreme Court, which has held that jailhouse lawyers must be permitted to assist illiterate inmates in filing petitions for postconviction relief unless the state provides some reasonable alternative.[1]

More on jailhouse lawyers here.

Columbia University Jailhouse Lawyers Manual.