Frog Gravy is a nonfiction incarceration account.
McCracken County Jail, May, 2008
My lawyer, who is about as useless as a steering wheel on a mule, calls me out to have a conversation. I have lost confidence in my lawyer, and I do not trust him. But, I am stuck with him and whatever surprises he brings.
As I walk down the hallway, I try to get a glimpse of Harry, who, as usual, is shouting and begging for someone to help him, from his isolation cell. I cannot see him. I wonder if Harry has a real name.
In the conference area, I seat myself at a small table, across from my lawyer. He says, “Did you hear anything about your sentence? How it is four years and not eight?
“Yeah,” I Say. “As a matter of fact, my family on the west coast told me, like two weeks ago. This judge will claim clerical error and give me eight. He did this on purpose, just to be mean, so I will make parole and he can take it away. This is not complicated. There may be a problem. Fred found a case that says he can’t take it back. Seems he missed a deadline.”
I watch the lawyer pick up a law book, that I have already looked through in the jail ‘law library,’ and thumb through it. He locates a statute that I have already read, and begins to read the statute to me. I let him read it, and I listen as though I have never heard it before.
I say, “I have told Fred to go ahead and file my notice of appeal. I will file it Pro Se.”
“The appeal has been filed.”
“No it hasn’t. Clymer wants some financial statement. For the umpteenth time. He’s trying to block my appeal.”
“By now, you oughta know so. By the way, those comments he made about me in open court? The ones about me being naked on an elephant riding through the middle of town at noon? And the comments at sentencing, where he acted like an auctioneer and said to the jury, Thirty, thirty, do I hear Sixty? Those are comments for the judicial conduct commission. Those comments were unnecessary, offensive and inappropriate. Even other inmates were offended. Do you have any idea what it takes to offend another inmate in here?”
“They have very specific rules. They’ll ignore it.”
“How about filing documents with made up facts. Will they ignore that?”
“They have very specific rules.”
“He can’t make sexually degrading comments in open court. Come on.”
“It won’t go anywhere.”
“Not if I don’t file it.”
The conversation shifts. The lawyer says, “You can’t practice nursing anymore.”
“I have spoken to the Board of Nursing,” I say. “Many times. Drug charges do not prevent someone from entering a monitored diversion program and continuing to practice. Many health professionals, in fact, piece their profession back together this way.”
“That’s not what they all think.”
Ah, the ‘they, ‘ I think to myself. I say, “Okay. I’ll bite. If they want their phony confession I will consider it. But there is a problem. I have no idea what to confess to. They have so many versions of their story that I am not sure which version to pick. Maybe you can help me pick, Chris. Go ahead. Pick a story for me. There’s lots to choose from. Or, how about this? Make up a new one.”
“I don’t know.”
“Find out. If they could keep their stories straight, it would make my phony confession task a lot easier.”
“I know, I know.”
“No. You don’t. Do not ever again tell me that you know what it’s like. You agreed to taking away my defense, during a meeting in the hour before trial- a meeting you never told me about. You botched the trial. We are now trying to figure out a way to undo the damage you did. We are trying to figure out if you even preserved anything for the appeal.”
“Don’t worry about the appeal.”
“Wake up Chris. If I don’t somehow come up with the filing fee and file it on time, the whole thing goes away. Writs of Mandamus are a waste of time on something that is filed late. Am I speaking English?”
In my head, the team of sledgehammers is back. I can feel the blood vessels swell, as I sit here. Finally I say, “How about the appeal? What are my chances on appeal?”
The lawyer replies, “Depends if he has friends in the Court of Appeals.”
note: During my sentencing, in March, 2008, the judge in my case said, in front of the jury, as an auctioneer would say: “Thirty, thirty, do I hear sixty?”
The comment, “She could be naked, riding on an elephant through the middle of town at noon, singing a song about heroin” was made after the suppression hearing. Ironically, in an inappropriate yet darkly humorous way, the judge was pointing out that it is not illegal to mention the name of a controlled substance, or to even sing a song about a controlled substance, while riding an elephant down the street naked, at noon. He is correct, of course, because we have a First Amendment right to free speech, and mentioning something about [insert the name of a controlled substance here] is not illegal.
Why, then, after making this comment, did the judge deem such free speech an illegal act? We do not know the answer.
Also of interest: Herion was the subject of a front-page news story in the area, just prior to my arrest. Chris McNeill refused to show the article to the jury during my trial. Also, Chris McNeill failed to include the transcript of the preliminary hearing in the record on appeal. The preliminary hearing transcript contained McCracken County Deputy Eddie McGuire’s under-oath statements shortly after my arrest, and the statements differed dramatically and materially from his statements later on, also under oath. I had to file a motion with the Court of Appeals to include the preliminary hearing testimony, so that the Court of Appeals could see how Eddie McGuire changed his story. The motion delayed my appeal for a year, while the Preliminary Hearing transcript and testimony was included in the record. I was stunned when I learned that my own lawyer had made such an omission and created the one-year delay.