Posts Tagged ‘criminal justice system’

Written by Masoninblue and reprinted, full-text, here, with permission. Please also refer to the other two Hearsay articles written by Masoninblue, and also, he will be writing a followup on exceptions to the Hearsay Rule. Masoninblue’s website is

Philosophical thought for the day: A rule is not a rule without exceptions, and there are no exceptions, damnit!

Good afternoon class.

Welcome to Hearsay 103.

There are so many exceptions to the hearsay rule that one might almost say the exceptions have swallowed the rule. I will discuss several of them in some detail and merely list the others because they do not come up all that often and they are not difficult to understand. For future reference, you can find them listed in rules 803 and 804 of the Federal Rules of Evidence, which are cited as FRE 803 and FRE 804. By the way, most of the states have adopted the Federal Rules of Evidence with minor changes and they use the same numbering system. Most of the minor changes are due to a state modifying the federal rule in order to retain the rule or a favored part of the rule that the state used to follow. For your information, the rules of evidence were promulgated by the various supreme courts pursuant to their rule making authority under the state constitutions. For the most part, judges and lawyers in all state and federal courts play with the same set of evidentiary rules and that is a good thing.

As I pointed out in our first class regarding the hearsay rule, the rule is designed to exclude unreliable evidence. Why bother? you might ask. The answer is that all of the rules are designed to filter the evidence that jurors get to hear so that they will not place undue emphasis or reliance on evidence that has little weight or importance. Put another way, judges and lawyers do not trust jurors, so they want to censor what they get to consider. The hearsay rule is a good example.

Recall our example in the first class involving the hapless Peter Piper who will never get to pick his fabled peck of pickled peppers due to Igor Ivarson’s storming rampage through the red light slamming Mr. Piper’s immortal soul through the uprights of heaven leaving his fractured mortal coil bereft and alone in a puddle of blood in the crosswalk of life. Ah, yes. T’was a pity, indeed.

So, we had B, let’s give him a name and call him Beauregard, shall we? Okay, and let’s also give A a name and call her Amanda. So, Beauregard is on the witness stand and the prosecutor asks him,

“What if anything did Amanda say to you at dinner about something that happened at the intersection?”

But for the hearsay objection by defense counsel that any reasonably conscious and sentient judge would have sustained because the answer is offered to prove the truth of the matter asserted in the statement, Amanda would have answered,

“Igor Ivarson ran right through the red light and hit Peter Piper in the crosswalk.”

You see, judges and lawyers fear that, if jurors heard the answer, they might place undue emphasis on the un-cross-examined statement of a witness who never actually testified. How can they reasonably and reliably assess Amanda’s credibility by listening to Beauregard drone on about dinner with Amanda?

Enough said.

Now, let’s tweak our fact pattern so that we remove Amanda and Beauregard from their cozy repast at their intimate restaurant and place them together at the intersection with Beauregard talking to his wife on his cell phone while staring at the sky when Igor Ivarson hits the unfortunate Peter Piper. He does not see the accident, but Amanda does. She utters a scream and says, “Oh my God. Igor Ivarson ran the red light and hit Peter Piper in the crosswalk.”

Flash forward to trial again with Beauregard on the stand and the prosecutor now asks,

“When you were standing on the corner of the intersection talking on your cell phone, what, if anything, did you hear Amanda say?”

Assume you are defense counsel and you stand up and say, “Objection, your Honor. The question calls for hearsay.”

What happens?

Well, I’ll tell you what happens.

The judge says: “Objection overruled. You may close your mouth and sit down, counsel.”

Saying, “But Judge. Professor Masoninblue says that’s hearsay because its offered to prove the truth of the matter and besides, we all know that we don’t trust juries, right Judge?” will not help you.

Welcome to the first two and likely most often used exceptions to the hearsay rule: Present Sense Impression and Excited Utterance.

FRE 803(1) defines a Present Sense Impression as follows:

A statement describing or explaining an event or condition made while the declarant was perceiving the event, or condition, or immediately thereafter.

FRE 803(2) defines an Excited Utterance as follows:

A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.

Amanda’s statement is admissible hearsay under both the present sense impression and excited utterance exceptions to the hearsay rule.

Why make an exception for these two types of statements and not the statement during the conversation at dinner?

Because the declarant, Amanda, was “describing or explaining an event or condition while [she] was perceiving the event”, and she was “under the stress of excitement caused by the event.” Her statement was an immediate reaction to the accident. She did not have an opportunity to reflect, reconsider, and possibly change or even forget her statement. For that reason, her statement is regarded as sufficiently accurate and reliable to be admitted into evidence, even if she does not testify and is not subject to cross examination.

In fact the availability of the declarant to testify at a hearing or trial is immaterial to all of the 23 exceptions to the hearsay rule that are listed in FRE 803.

I see that we are at 1000 words, so we have reached the end of today’s class and we’ll have to continue our study of the exceptions to the hearsay rule tomorrow.

Time flies when you’re having fun.

Roxi, The Cocker Spaniel. Jail Art

My sister’s cocker spaniel Roxi by Crane-Station on flickr. Jail art, colored pencil. My sister is a champion at the precise art of weaving, hence, “Weave-On.” A fellow inmate, who was a dog groomer, sat with me and described some of the finer points of cocker spaniels to me, so that I could do this drawing. Hence, the great big feet and the long, pretty ears. Roxi is very sweet. She is also a hot mess! Very wound up.Drawn in Ricky’s World.

Music for this post post is CEBU dancing inmates:

Frog Gravy is a nonfiction account of women’s incarceration in Kentucky jails and prison, in 2008 and 2009, and is reconstructed from my notes.

Inmate names are changed, except for my own, and for nicknames that do not reveal identity. My prison nickname was Bird Lady.

Frog Gravy contains graphic language.

Frog Gravy posts are gathered in one place at, and, to get to older posts may take some backward scrolling through the “Older Posts” instruction.

PeWee Valley Women’s Penitentiary, KCIW, Spring, 2009.

At five-forty-five every morning, the fluorescent lights buzz and snap on throughout the penitentiary, and we are awakened with the cheery overhead announcement, “Goood morning KCIW, this is your five-forty-five AM wake-up call,” that sounds exactly like “Gooood morning Viet Nam,” only with different words.

My roommate, Miss Pat, a kind black lady who loves her grandchildren, and I get ready for school. Breakfast is served in the dining hall at around 6 AM, but I usually skip it and study, because early morning has always been my best study time.

I have designed a rather nice imaginary greenhouse for Horticulture, if I may say so myself, for about $34,000. It is a 28′ x 96′ “Quonst”-style, plastic (polyethlylene) covered house, with fan-and-pad cooling, nice heaters, fans and lights, and a bit of high-tech environmental control.

I chose sub-irrigation. The benches are fitted for ebb-and-flow. Water is pumped into the benches, the pots take up what they need, and then the benches drain. I even chose this irrigation method for propagation (germination) over misting, because I think misting can invite fungus problems.

I’ve read that Europe, which is eons ahead of us in horticulture, has switched to nearly 80% ebb-and-flow. In fact, what is growing (so to speak) in popularity over there is flood floors, floor benches, where the whole thing is flooded and then drained. Fertilizer and insecticide can be delivered in this way.

Mealtimes in the prison are very busy, and the dining hall is always crowded. Dormitories are called at staggered time intervals to address the crowding, but often, inmates linger after the next dorm is called in. One chair in the dining hall is elevated and cushioned and it has a sign on it that says, “Reserved for Jackie.”

I am going to burn in Hell like a twig for writing this, but when I see Jackie for the first time, I cannot take my eyes away, because she has no arms, and is eating with her feet. But I can’t help it, I am mesmerized. She can do things with her toes that I cannot do with my hands, let alone my feet. In fact, she does everything with her feet and even does unassisted outdoor work in the yard with strength and precision. Her adaptation makes me feel like a clumsy klutz.

At some point, I ask Christie (who was initially sent here after her drug court denial) why Jackie is here, and Christie tells me that she was convicted of shaking her baby to death on the outside, a case of shaken baby syndrome. At some point, in my room, when no one is around, I try to get my feet to within range of my face and I cannot do it.

I have written to the Kentucky Innocence Project and requested DNA testing for the inside and the outside of the “baggie” in my case, but my request is rejected, because I am not on death row, I suppose.

Letter from Kentucky Innocence Project

Back at school, my greenhouse is a production operation, so the benches run the length-of-house. There are five benches, three movable (rolling), so the aisle is ‘floating,’ and the aisle is just wide enough for carts- this maximizes the growing area.

After school, I am picked, for no reason whatsoever, to be the subject of guard/officer Ogletree’s (who I call “Ogre,”) torment-a-white-inmate game. She prods and insults me all the way to main laundry, and forces me to change into clothing fit for a child. Fortunately, I have spare clothing, but I am in tears all of the sudden, because for some reason, this humiliation gets to me. I speak to Officer Kennedy, a kind officer, trained in negotiation, who will go on, I believe, to be Assistant Warden at a different prison after my release. Kennedy is very helpful, and I am able to return to the dorm, to walk through the inmate insult lines and laughs, all the way back to my room.

As I said before, it would not surprise me if Ogletree spoke backward or neighed like a horse, or spoke in a combination of previously untranslated ancient languages, because she is at the least, an egregious human being.

I wanted to say to her, “Bitch, I did not invent slaves. My ancestors were poor. They farmed their own land until they lost everything.” But it would not do any good. She uses her badge to berate, belittle, and humiliate, and grievances go nowhere.

Sometimes I think I am wasting my time with God, and maybe I should just throw in the towel and worship Satan. He is winning, anyway. Why try so hard to search for God, look for the good in people, seek truths, stand up for something, and try to be a better person, when it is so easy to just join in with the Father Of Lies?

Written by my husband Masoninblue, and reprinted, full-text, here with permission.

Good afternoon, class.

Now that you are experts regarding what constitutes hearsay, let’s take a look at an interesting issue in Crane-Station’s case.

The arresting officer, McCracken County Sheriff’s Deputy Eddie McGuire testified at her Preliminary Hearing that, after she was thoroughly searched at the roadside by a female officer who did not find any contraband or paraphernalia, he arrested her for DUI, handcuffed her with her hands behind her back, placed her in the backseat of his patrol vehicle, and transported her to Lourdes Hospital in Paducah for a blood draw. As he was assisting her to get out of the backseat at the hospital, she told him that her watch had fallen off her wrist during the ride and it slipped beyond her reach behind the seat. She asked him to please retrieve it, which he agreed to do.

When the returned to his vehicle after the blood draw, he unlocked the back door, pulled the seat forward, and reached beneath it to grab the watch. When he handed her the watch, he also showed her a small crumb-like object and said, “Sure looks like heroin to me.”

He also testified that he field tested the substance after he took her to jail and it tested negative for the presence of heroin. He said he did not field test it for cocaine because “We knew all along it would be crack.”

In the trial judge’s chambers before jury selection on the first day of the trial, the prosecutor asked the trial judge to prohibit the defense from mentioning during jury selection and opening statement her statement about her watch and her request to retrieve it on the ground that the statements were inadmissible hearsay unless he offered them into evidence as an admission by a party opponent, which he did not intend to do. He also asked the judge to prohibit the defense from attempting to introduce her statements into evidence during the trial or to mention them in closing argument.

The trial judge agreed despite defense counsel’s objection.

To make matters more bizarre, Deputy McGuire changed his testimony regarding how he retrieved the watch. Without mentioning her statements, of course, he said he saw her watch and the rock together in the seatbelt crack in plain view on the seat beside her before he helped her to get out of the backseat after they arrived at the hospital.

When her attorney attempted to confront him on cross examination with the deputy’s prior inconsistent testimony under oath at the Preliminary Hearing, the prosecutor objected and the trial judge sustained the objection.

In closing argument, the prosecutor argued that she had not explained why her watch was in plain view next to the rock of crack in the seatbelt crack right beside her. Not surprisingly, the jury convicted her of possessing the rock of crack and tampering with evidence (i.e., attempting to conceal it in the seatbelt crack).

Now, let’s analyze her statements. To determine if they were hearsay, we begin by asking if the defense would have offered them to prove the truth of the matters asserted in her statements.

Answer: No, because they would have been offered to show that in response to something she said, he pulled the seat forward to look for her watch and that is when he found it, handed it to her, and produced the crumb-like substance that by his own admission he “knew all along was going to be crack.”

Notice that phrased this way, it is clear that what she actually said was not important. The point is she said something and whatever it was, it prompted him to pull the seat forward and look under it where he found her watch and the crumb-like object. That is, they were not in plain view and we know that because he testified at the Preliminary Hearing under oath that that is how he found the watch and the rock.

Whenever the actual words in a statement do not matter, as is the case here, the statement necessarily is not being offered to prove the truth of the matter asserted in the statement. Make a note of this and remember it because it is very important.

Not only were her statements admissible, the deputy’s previous testimony under oath at the Preliminary Hearing was admissible to impeach his testimony about finding her watch and the rock together in plain view beside her.

The prosecutor’s incredibly sleazy closing argument commenting on her failure to explain why her watch and the rock were together in plain view, when he persuaded the trial judge to prohibit her from providing that explanation, was an atrocious improper comment on her court ordered silence.

Finally, the trial judge’s evidentiary rulings prevented her from putting on a defense in violation of her Fifth, Sixth, and 14th Amendment rights.


Cross posted at my blog and the Smirking Chimp.

Author’s Note: Due to the length of this essay, I have decided to discuss the rest of the hearsay rule in Part 3 tomorrow.

This full-text article is written by and reprinted with permission from my husband, Masoninblue.

I will start with an example.

A witnesses an accident and later tells B that Igor Ivarson ran a red light and hit Peter Piper in a crosswalk, killing him.

Flash forward to a trial. Igor Ivarson is charged with negligent homicide and the prosecutor calls B to the stand and asks him the following question after establishing that B had dinner with A several hours after the accident:

What, if anything, did A say to you about the accident?

If you are representing Igor and you do not stand up and say in a commanding voice, “Objection, your Honor. The question calls for hearsay”, a hole should open up in the floor beneath your chair disappearing you forever into the Great Beyond From Which There Is No Return. This is an exceedingly grim place not unlike Hell.

B’s answer would be hearsay because he would be repeating what A told him and his answer would be offered to prove that Igor ran the red light and hit Peter Piper in a crosswalk. That is one of the fundamental questions of fact that the prosecution must prove beyond a reasonable doubt in Igor’s trial.

Igor’s right to confront his accusers via cross examination would be violated if A’s statement comes in because Igor’s lawyer cannot cross examine A since A is not on the witness stand. Equally important, A was not under oath when A made the statement and the jury cannot evaluate A’s credibility, if A is not present, questioned, and cross examined.

For purposes of the following definition:

A is the declarant or person who made the statement.

B is the witness in court repeating the declarant’s statement.

(Keep in mind that a statement can be oral or written and also includes non-verbal conduct, if such conduct was intended as an assertion. An example of conduct intended as an assertion would be nodding your head to indicate agreement in response to a question, like “Do you want to eat pizza tonight?”)

Okay, here’s the definition:

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See Federal Rule of Evidence (FRE) 801(c).

Since A did not make the statement while testifying at the trial or hearing, (he made it out of court before the trial), and A’s statement was offered to prove what the statement asserted, A’s statement is hearsay.

Simple, right?

Okay, what if A’s statement were offered for some other purpose? For example, let’s say it was offered to establish when A first knew about the accident. If that were the case, and that was a relevant issue, A’s statement would not be hearsay since it was offered for a purpose other than establishing the truth of the matter asserted in the statement.

This is a critical distinction that eludes oodles of judges and lawyers, not to mention law students. Don’t you make the same mistake.

By the way, sometimes judges will admit A’s statement, subject to a limiting oral instruction telling the jury that they may only consider A’s statement for the limited purpose of deciding when A first knew about the accident and for no other purpose.

Yah, sure. You betcha.

As if the members of the jury will ever remember that limiting instruction during their deliberations. Sheesh!

Now that you think you know what statements are hearsay, guess what?Some statements that fit the definition of hearsay are defined as not-hearsay.

Think of them as Jokers in a deck of cards.

What are these Jokers?

Hint: Not the football coach at the University of Kentucky.

FRE 801(d) identifies two types of non-hearsay statements:

(1) Prior statements by a witness, and

(2) Admissions by a party opponent.

A prior statement of a declarant who testifies at a trial or hearing is not hearsay if the witness is subject to cross examination about the prior statement and the statement is (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.

An admission by a party opponent is a statement by a party to a lawsuit that is offered by the party’s opponent. Note that only the opponent can offer the seemingly hearsay statement; the party who made the statement cannot offer it. For example, if Igor Ivarson confessed that he ran a red light and hit Peter Piper in the crosswalk, his statement is admissible as an admission by a party opponent, even though it is offered to prove the truth of the matter asserted in the statement.

Can the defendant offer his own statement for another purpose, in other words, to prove something other than the truth of the matter asserted in the statement?

Yes, for example, to prove that the person to whom he made the statement acted in reliance on that statement, if that is an issue in the case. I will provide a detailed example of this situation in my next post as this is exactly what happened in Crane-Station’s case.

Suppose Igor Ivarson told the police that he was not driving the vehicle that struck Peter Piper. Would his exculpatory statement be admissible to prove that he was not driving the vehicle?

Not unless the prosecutor, who is the party opponent, offered it and no prosecutor is that stupid. At least they are not supposed to be.

There is only one exception to this rule and that is based on a defendant’s constitutional right to present a defense. If the statement is the only exculpatory evidence available, he cannot be prevented from offering his statement by this rule.

Finally, a statement by a coconspirator in furtherance of a conspiracy is admissible against the coconspirator and other members of the conspiracy.

NEXT: Exceptions to the hearsay rule.

Any questions?

Cross posted at my website and the Smirking Chimp and Firedoglake in MyFDL.

And because Dakine always says he can, I will too:

Heart and flower. Jail art.

Heart and flower jail art by Crane-Station on flickr. Ink, eye shadow, magazine ink and colored pencil.

Author’s note: Frog Gravy is a nonfiction account of incarceration, first in jails and then in prison in Kentucky, during 2008 and 2009, and is reconstructed from my notes.

Inmate names are changed, except for nicknames that do not reveal identity.

Frog Gravy contains graphic language.

PeWee Valley Women’s Penitentiary (KCIW), Winter, 2009

I am standing on the ball field with a group, waiting for med line to be called. I am in the med line before the med line. Since we are officially at rec and not in med line yet, we can still talk and move about. There is a heated conversation going on nearby.

I ask my hillbilly friend in a wheelchair, “What are they arguing about?”

“It’s about some pussy. Ain’t ’bout no dick. Ain’t ’bout no money. It’s all ’bout some pussy.”

The argument continues:

“Your answer to everything is dick.”

“I’m strictly dickly. If there ain’t a dick swinging I ain’t interested.”

“Well, I’ve done had my share of dicks in life and there ain’t no dick that can make you come like a woman can.”

Another inmate chimes in. Using her fist, she grabs an air penis, does and little dance and says, “He teases me and he goes from the clit to the hole and then the clit to the hole until I cain’t stand it and he puts it in. And that’s how we do it in my neighborhood.”

Med line is called and we start the race to get to the medical building. No running is allowed. This is Inmate Special Olympics. Sometimes I ask to push a wheelchair inmate, because, in shopping cart fashion, with the roll, I can increase my speed, just like in real marathons on the outside.

At med call, I am no lomger Bird Lady, or a wife, or a mother or a nurse, or a scuba diving lover or an Old People’s Soccer Player. I am “218896.” When I reach the med line window and call this inmate number, the nurse on the other side of the window will punch some pills out of blister packs. There is the Accept The Unacceptable Pill. Actually there are two of these now, because after speaking with my psychiatrist, the Accept The Unacceptable dose was doubled. And the there is the Fewer Nightmares pill, otherwise known as the Do The Time Don’t Let The Time Do You pill.

I live in a world where women deliver babies and attend their son’s and daughters funerals in shackles. Where family members die, are born, murdered, killed, married, divorced, moved, educated, baptized, enlisted, converted and shipped, while we make up some sort of a life behind razor wire. We are hated, loved, accepted, rejected and endlessly talked about. I have no voice in here, no say or reaction to any of the outside events. I am 218896, about to take some prison-issue Accept The Unacceptable pills, because that way, my world in here is supposed to make sense to me.

Today in school I learned that you can make a whole career out of ferns.

Med line is about an hour long, and we are not allowed to talk. I reflect on an event that happened in med line before the med line. Another inmate had found a baby bird that I had been tending to, in the yard, and had taken it to a guard. The bird was a fledgling. The guard took it to underneath a tree on the ball field and stomped it to death in full view of all of the inmates. He made a point then, of walking past me and grinning, and laughing, as he wiped the gore on the pavement, taunting me.

I briefly fantasized about killing him on the spot. After all, killing in Kentucky brings a less severe sentence that the one I am serving, and I could construct a strong argument, I think, that this person simply ‘needed killin.’

But then I remembered that someone once said that Checkmate is a let down: tormenting your opponent is more satisfying. This bird-killing-and-enjoying-it guard is bespectacled and boyish looking. He was probably bullied. So now he’s just getting a little action himself, although in a chickenshit way, because we are inmates. Behind razor wire, we must restrain ourselves from delivering a good ass-ramming to the guards, and he knows this, and so, he walks around the ball field with that stupid grin and Nazi mindset, figuring out how he can bolster his own weakness by picking on defenseless people. He does this full time.

I came across an article this winter that said that Kentucky is laying off 275 teachers. It said nothing about people such as this guard that are employed full time to torment. It said nothing of the people employed in the prison industry to, for example, go through our mail and confiscate such things as bird feathers (this happened to me) and listing them in documents as potential tattooing instruments. These actions will, Kentucky assures the taxpayers, make Kentucky a safer community.

So, that leaves me, in here, to teach Kentucky’s Left Behind things like their times tables and how to count back cash register change and how to get the “x” onto one side of an equation and everything else on the other, to solve for the “x.” I try to make math fun by saying things like, “By the end of this session, you will know how to multiply or divide any number in the world by ten.”

I am close to the med window now. My friend who used to be my Spades partner in Ridgeview Dormitory comes to the chain link fence. She was moved to the medical building full time, when she was discovered talking to the trees and bushes in the main yard one day. She is in prison because one day, her husband (common law) of many years convinced her to try some crack. She did, and then she slit his throat with a hatchet, called the police, and retired to the front porch to smoke a cigarette and wait for their arrival, while the husband crawled, slipped and slid around on his own blood in the kitchen. When the crack wore off they still loved each other. He died while she was in prison here, and then she went into mental decline and was deemed unfit for general population.

I reach the window and call out “218896,” and out comes the blister pack, and the dose of Accept The Unacceptable, and the dose of Do The Time Don’t Let The Time Do You.

Prison is not just a circle. It is a sphere.

Lighter note: My Nuts Itch.

This full-text article was written by my husband, Masoninblue, and it is republished here with permission.

I would like to hat-tip my husband for providing informative (and entertaining) articles that the passing public can understand, about legal issues and the criminal justice system.

This article has to do with Federal Grand Juries. I recently addressed the State Grand Jury system, from the point of view of a defendant in a criminal case. My opinion about State Grand Juries is here.

I have spoken with Masoninblue about including more such articles, because they are informative. He is willing to do this, for many topics, such as, for example, the Hearsay Rule. Keep an eye out for these.

Author’s Note: I published this at Firedoglake/MyFDL on October 6, 2010 just after people, who had protested at the Republican National Convention in Minneapolis in 2008, were subpoenaed to testify before a federal grand jury in Chicago investigating them to determine if they had provided material support to terrorists and/or a terrorist group.

I am reposting it here a little over a year later because I suspect it may be useful information to some of my readers, especially those in the Occupy Everywhere movement.

I was a criminal defense lawyer for 30 years and a law professor for 3 years. I represented many clients over the years in federal court, so I have a lot of experience representing people subpoenaed to appear before a grand jury.

State grand juries generally work the same way but are significantly less often used aggressively as federal prosecutors typically use them.


A grand jury consists of 17 to 23 citizens who generally meet once per week for a term of 18 months to hear witness testimony, review documentary evidence, and vote on issuing indictments, which is the formal legal term for the government’s charging document in a criminal case. The indictment lists the defendant(s) and each charge is set out separately in what lawyers refer to as counts identifying the criminal statute alleged to have been violated, the name(s) of the defendant(s) who is alleged to have violated the statute, the on-or-about date of the offense, and a very short description of the act that is alleged to constitute the crime.

Pursuant to the Fifth Amendment, all federal felony prosecutions must be by grand jury indictment, unless the defendant waives his right to be prosecuted by indictment and agrees to be prosecuted by information. This means federal prosecutors present their cases to a grand jury together with the indictment and ask the grand jury to review and approve the indictment.

The members of the grand jury vote on whether the government has presented sufficient evidence to establish probable cause that the defendant(s) committed the crime(s) charged in each count of the indictment. Twelve members must vote to approve the indictment, and if that happens, the foreperson of the grand jury signs and returns, or hands down the indictment, which is filed in the District Court Clerk’s Office. Grand juries rarely ever refuse to indict.

Grand juries meet in secret and its members take an oath never to discuss what happens inside the grand jury room. The only other people present in the room when the grand jury is in session are a court reporter who transcribes the proceedings, a federal prosecutor who presents the government’s case, the case agent who is the law enforcement officer in charge of the investigation, and the witness who is testifying. Witnesses may appear with counsel, but their attorney must wait outside the grand jury room while the witness is testifying. The witness must answer all questions truthfully under penalty of perjury. The witness can request a recess in response to a question in order to consult with counsel outside the grand jury room. The witness may refuse to answer any question on the ground that a truthful answer might tend to incriminate the witness, or lead to the discovery of evidence that might tend to incriminate the witness. Since the Fifth Amendment protects this privilege to refuse to answer, no witness can be punished for refusing to answer a question on the basis of asserting the Fifth Amendment. Properly subpoenaed witnesses who refuse to appear before the grand jury, or who appear but refuse to answer questions without asserting the Fifth Amendment, may be held in contempt of the grand jury and jailed until such time as they agree to answer the question, or the grand jury term expires, whichever happens first.

Let’s say Sally Jones is subpoenaed to testify before the grand jury on November 19, 2010. She contacts a lawyer and retains him to represent her. What does the lawyer do?

The lawyer contacts the federal prosecutor and asks her whether his client is a target, subject, or witness. Targets are people whom the prosecutor intends to charge in the indictment. Subjects are people whom the prosecutor might charge, but would prefer to use to strengthen the government’s case against the target(s). By use, I mean to testify against the target(s) at the grand jury and at the subsequent trial, if the target refuses to plead guilty and insists on going to trial. Witnesses have no potential exposure to liability in the underlying case.

If the prosecutor tells the attorney that the client is a target, the attorney tells the prosecutor that his client will be taking the Fifth to all questions and requests that his client be excused or released from the subpoena. Prosecutors usually agree to the request as there is no reason to have the target come in and refuse to answer questions. That would waste everyone’s time and a refusal to answer questions cannot be held against the witness who asserts the privilege. In other words, the grand jury cannot consider a witness’s refusal to answer as evidence of guilt.

If the prosecutor tells the attorney that the client is a subject, the attorney will typically respond by asking the prosecutor what he wants in exchange for immunity. What does this mean?

As is the case with the target, the subject also can assert the Fifth and refuse to answer questions. There is an exception, however, and it’s called immunity. In other words, the prosecutor promises not to charge the subject with any crime based on the answers provided by the subject, unless the subject lies, in which case the prosecutor reserves the right to prosecute the subject for perjury. Once immunized, the subject no longer can assert the Fifth Amendment because her answers no longer have the potential of incriminating her, due to the immunity promise. Therefore, the witness has to answer, or be held in contempt for refusing to answer. As I said previously, that means she goes to jail and stays there until she answers or the grand jury term expires, whichever happens first. This is a tough situation to be in.

Usually a prosecutor wants some blood too and insists on the client pleading guilty to some offense that will involve some prison time. Welcome to the let’s-make-a-deal game, or plea bargaining. The prosecutor’s offer will typically be contingent on reviewing a proffer of what the client would say regarding her involvement in the crime(s) that the prosecutor is investigating. The proffer is initially provided by the client’s attorney in a rough summary form. That is usually followed up by a meeting with the prosecutor and the case agent at the prosecutor’s office. Attorney and client show up at the appointed hour. They review and sign a document that exempts their discussions and the information that the client is about to reveal from being used against the client in the future, unless the client lies, or blurts out a confession to some other crime for which she is not being investigated such as a murder, for example. Sometimes the client will be required to submit to a polygraph, although that is a relatively rare event. Then the negotiations begin in earnest. Eventually, an agreement will be reached, or the talks will break down and the client will be indicted along with the target(s) or forced to sit out the grand jury term in jail for contempt in refusing to answer.

What about the antiwar protesters in Minneapolis and Chicago who have been subpoenaed to appear and testify before the grand jury investigating potential violations of the laws prohibiting terrorism or materially contributing to terrorism?

Each person needs to consult with counsel and hopefully lawyers will come to their assistance and provide representation on a pro bono basis, because this looks like a political prosecution and fishing expedition to intimidate people exercising their constitutional right to dissent from government policy. There probably aren’t any targets at this point. Targets obviously should take the Fifth. There may not even be any subjects. Whatever the case may be, anyone who has any potential exposure should seriously consider refusing to answer questions on the ground that their answer might tend to incriminate them. The District Court Clerk’s Office will appoint counsel to represent anyone who cannot afford counsel.

No one has to explain why they believe their answer might tend to incriminate them because forcing them to answer in order to explain why they are asserting the privilege would defeat the purpose of the privilege, right? Y’all can see that, I hope. Nevertheless, refusing to answer a question like what’s your name, might reasonably be expected to cause a certain detectable level of unpleasantness that could morph into a go-to-jail card for contempt. That’s why it’s a good idea to have a lawyer to assist in negotiating potential troublesome areas where an assertion of the privilege might be legitimate but still create a problem if the expected answer would not reasonably be expected to reveal incriminating information.

I noticed in the piece that I read that people have announced that they are not going to appear in response to the subpoena. That could result and probably will result in the arrest of everyone who refuses to appear unless their appearance is excused ahead of time. This is another reason for everyone to get a lawyer as the lawyer may be able to convince the prosecutor that the client did not violate any law and doesn’t have any information that anyone else violated any laws.

The dangerous legal bramble bush in this case is the definition of what constitutes “material support” for terrorism. That is the danger zone for each witness because the prosecution and the defense probably will disagree as to what it means. The court will look at the statutory definition, but I believe there may still be a gray area where reasonable people might disagree regarding whether certain conduct constitutes material support. Ironically, this uncertainty should expand the scope of the Fifth Amendment privilege to cover any activity involving planning and organizing protests that might be construed as providing material support for terrorism. The First Amendment Freedom of Speech Clause also comes into play, so sorting this out may get a little dicey.

People who are offered immunity deals in exchange for cooperation and testimony will be in a tough spot because they have to answer questions or be held in contempt and go to jail. Some people may decide to do that on principle, but I urge people to withhold making a decision about that until they have consulted with counsel.

For all of these reasons, I strongly encourage everyone who has been subpoenaed to please consult with a lawyer before deciding on a course of action. Although I’ve packed lots of information in this diary, I haven’t covered everything by any means. I’ll try to answer questions in the comments. I encourage any lawyers who read this to please join the discussion and comment, as the spirit moves you.


Proliferation-Paul Rucker-US Prisons


Green Dots: 1778-1900

Yellow Dots: 1901-1940

Orange Dots: 1941-1980

Red Dots: 1981-2005
symbiosism1 1 year ago

Nathan Eyring – Animation
Aaron Bourget- Video Editing
Rose Heyer – Research
Troy Glessner – Music Mastering

Special Thanks:
Blue Mountain Center- Prison Issues Residency
Fellow Activists of the Prison Issues Residency
Peter Wagner
Prison Policy Initiative
Prisoners of the Census
Washington State Arts Commission/Artist Trust Fellowship
Cornish College of the Arts
Jess Van Nostrand

Today marks the third day of a new hunger strike at Pelican Bay State Prison, where 1000 inmates in the supermax Security Housing Unit (SHU) are warehoused for lengthy periods of time and deprived of human contact and communication.

Keramet Reiter, University of California, Berkley, Department of Jurisprudence and Social Policy has written an excellent article titled Parole, Snitch or Die. There are now thousands of human beings in the United States locked in long-term sensory deprivation cells called solitary confinement cells. The article focuses on California in particular because two of the first and largest modern supermaxes, Pelican Bay and Corcoran State, are in California. California’s supermaxes can house more than 3300 people in extreme conditions.

Sumermax proliferation began in the late eighties. Now, almost every state has a supermax facility that is either some portion of a retrofitted prison or a structure designed specifically for that purpose. County jails also have sensory deprivation isolation cells and holes.

In Frog Gravy, I often mention ‘Harry.’ Harry was a mentally ill man in an isolation cell in the jail. None of us ever saw him. We would have seen him if he were allowed recreation in the outside cage because he would have walked down the hallway and by our small cell on the way to recreation. He had been in the isolation cell for many months with no human contact. He apparently smeared feces on the wall. The jail staff pepper sprayed him in the cell. I only knew the man existed because he shouted for help, all hours of the day and night.

It is difficult to estimate how many people are locked in these cells in this country. The paper estimates as many as 100,000. The detention is anything but brief.

Sometimes people liken these cells to Alcatraz. For example, ADX Florence, which is an all supermax federal prison in Colorado is sometimes called ‘The Alcatraz of The Rockies.’ However, today’s supermax sensory deprivation cells are actually worse in that the engineering and design includes soundproofing and disorienting entombment in steel and concrete.

Supermax prisons across the United States detain thousands in long-term solitary confinement, under conditions of
extreme sensory deprivation. They are prisons within prisons, imprisoning those who allegedly cannot be controlled
in a general population prison setting. Most supermaxes were built in a brief period, between the late 1980s and the
late 1990s. In 1988 and 1989, California opened two of the first and largest of the modern supermaxes: Pelican Bay
and Corcoran State Prisons. Today, California houses more than 3,300 prisoners in supermax conditions.

The original idea behind supermax detention in Pelican Bay State Prison was to address gang violence. There is, however, no conclusive data that correlates long-term sensory deprivation with a reduction in violence.

Placement into these extreme conditions is determined by prison staff and not by any court. If an inmate, for example, is believed to be a gang member, that alone can result in isolation detention. The criteria are not set, nor is the length of time that an inmate will spend in isolation.

Lengthy isolation detention is psychologically devastating. The damage is permanent.

Psychologists, psychiatrists and anthropologists have
documented the mental health impacts for prisoners consigned to supermaxes; all have found
dramatic and irreparable deterioration in mental health for prisoners in supermaxes, after even a
few months of solitary detention (Haney 2003; Kupers 1999; Rhodes 2004). Rehabilitation,
however, is not the goal of the supermax.

Supermax detention lengths are increasing. Eighteen months is not uncommon; multiple years are not uncommon. The only human contact is rough handling by guards. The only time outside cement is one hour each day in a different cage. (Actually, the one hour per day is not the case in many jail isolation cells.) Light torture is 24/7/365. Often, isolation inmates are deprived of glasses and stationery.

It is also interesting to note that many inmates are paroled directly from their supermax isolation cell into the community. How in the world can one who had been entombed in cement for months and years at a time with no human contact be expected to integrate into society?

Definitions of ‘gang’ membership are vague and entirely discretionary. Disciplinary infractions that result in isolation detention can be as minor as spitting to as serious as attempted murder.

Short-term disciplinary detention for violent acts and behavior problems is being replaced with indefinite torture. The outcome criteria- better or resolved behavior- are not met. In other words, the data does not support torture.

Why is this country planning more supermax facilities and more jails and prisons and jails and holes within prisons? There is no ‘correction’ in torture. In fact, there is no ‘correction’ or rehabilitation goal in America’s so-called correctional facilities today.

This is now day 4 of the new hunger strike
and the state of California is threatening discipline for inmates joining the strike in solidarity. I suppose that means that a few thousand more people will now be tortured with the hole for an indefinite period.