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Tax dollars are being spent to build prisons instead of schools, that alone is absurd.  Tax dollars, 19 Billion of them, will be spent on a "drug war", that only keeps out 2% of the drugs trafficked into the USA.

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December 2006

Bush Pardons 16 Minor Criminals

New York Lawyer, By Jennifer Loven, The Associated Press

12-22-06 -- President Bush gave a pre-Christmas gift to 17 minor criminals, but even after adding these pardons and one sentence commutation to his record he remains one of the stingiest presidents for such federal forgiveness. . . . Six of the federal offenses involved in the 16 pardons and one commutation issued Thursday were drug crimes, while others included bank fraud, mail fraud, the acceptance of a kickback, a false statement on a loan application and conspiracy to defraud the government over taxes. . . . Seven of the 17 weren't even sent to prison or jail, getting probation, small fines or other penalties instead. The longest sentence was nine years, for aiding cocaine distribution, followed by a six-year term for conspiracy to possess marijuana.


Does separation equal suffering?

Some state inmates spend years in solitary. Critics say that is cruel and unusual.

By Meg Laughlin

12-17-06 -- Ian Manuel had just turned 14 when he went to prison for shooting a woman in a botched robbery on a Tampa sidewalk. Mouthy and disobedient, he was sent to solitary confinement a year and a half later. . . . That was in 1992. He has been there ever since. . . . Now 29, Manuel has spent half his life in a concrete box the size of a walk-in closet. His food comes through a slot in the door. He never sees another inmate. Out of boredom he cuts himself just to watch the blood trickle. . . . Attorneys who advocate on behalf of prisoners call Manuel "the poster boy" for the ill effects of solitary confinement. . . . There are 3,500 inmates in solitary confinement in Florida prisons. More than 1,400 of them are held under the strictest conditions, like Manuel. . . . They are not allowed out of their cells except for three quick showers a week and five hours in an empty outdoor cage that resembles a dog run. . . . They are not allowed to stand at their doors and look out the narrow plexiglass window in their cells, bathe in their sinks when it's hot, or use their blankets as a wrap when it's cold. . . . They are not allowed to call out chess plays from cell to cell or read anything but legal and religious materials. If they violate any of these rules, their time in solitary is extended.


Prisoners' Right to Internet Materials Contested

Bans on inmate mail generated from the Net are triggering lawsuits

Vesna Jaksic, The National Law Journal

12-26-06 -- The Internet age -- and all its legal complications -- has finally come to prisons. . . . When Danny Williams, a Georgia prisoner serving a life sentence for murder, wasn't allowed to receive legal materials downloaded from the Internet in his mail, he filed a pro se suit challenging the ban. . . . Brooke Savage, an associate in the Atlanta office of Holland & Knight, took over the suit in early 2004 shortly after joining the firm, which had been appointed by the court. Williams v. Donald, No. 5:01-CV-292-2 (M.D. Ga.). . . . "It was something that just stood out as being contrary to the First Amendment, a complete and seemingly arbitrary ban on a prisoner's mail solely because it is generated from the Internet," she said. . . . The Georgia Department of Corrections policy prohibits a prisoner from receiving mail from the Internet unless it is from the prisoner's lawyer or the Web site's publisher. Williams' girlfriend at the time had sent the materials. . . . Prisoners do not have access to the Internet. Cases about inmates' rights in the digital world have focused on whether prisoners should be allowed to receive correspondence originating from the Internet. Prisoners' advocates have said that receiving the material in the mail is a free speech right protected by the First Amendment. . . . Opponents have brought up an array of safety and security concerns, such as the possibility that the materials could include contraband. In Williams' case, state officials said that Internet printouts may increase the risk of inmates getting their hands on dangerous information, such as instructions on making a pipe bomb, according to court documents.

Ga. Supreme Court rejects teen's appeal in sex case

Associated Press

12-15-06 -- The Georgia Supreme Court has turned down an appeal from a teen who was sentenced to 10 years in prison for having sex with a 15-year-old. . . . In a ruling released Friday, the court denied a motion for reconsideration filed by lawyers for Genarlow Wilson, who was 17 when he and the 15-year-old engaged in consensual oral sex. He was sentenced for aggravated child molestation. . . . Wilson's case was one of two cases that were cited earlier this year when lawmakers passed a law that otherwise strengthened penalties for sex offenders, but reduced the penalty from a felony to a misdemeanor for some teenagers convicted of sodomy.


Ohio Whistleblower Gets 8 Years For Criticizing Judge

12-20-06 -- Government critic and judicial whistleblower Elsebeth Baumgartner has been sentenced to eight years in prison for writing e-mails to a 76-year-old retired visiting judge who is still sitting on the bench adjudicating matters although the Ohio Constitution mandated his removal from the bench when he reached age 70. . . . In an apparent attempt to position herself and the Cuyahoga County prosecutor's office for Baumgartner's expected constitutional challenge to both the sufficiency and lawfulness of the charges levied against her as well as the procedures exercised in gaining the convictions, Cuyahoga Common Pleas Court Judge Shirley Strickland Saffold said that she wasn't sentencing Baumgartner for the content of her speech but rather for her act of exercising that speech. . . . Although Baumgartner was arrested and prosecuted for allegedly intimidating and retaliating against Markus because he refused to disqualify himself from adjudicating matters against her, retiring visiting judge Richard Markus, who has exhibited an extraordinary ego and conceit as well as overwhelming bias against Baumgartner, said last month that he hadn't been intimidated by her.


Amicus Curiae Briefs Filed In Prison Phone Appeal

© 2006 North Country Gazette

12-29-06 -- Over 50 individuals, 38 organizations and 15 elected officials have moved for permission to file "friend of the court" briefs with the Court of Appeals in support of the pending appeal by the friends, family members, and attorneys of New York State Prisoners. CCR also filed the reply brief in the case, Walton v. New York State Department of Correctional Services, completing the parties' briefing schedule before the high court. . . . The Center for Constitutional Rights is representing the plaintiffs. . . . "This brings us one step closer to ending the unlawful kickback contract between MCI/Verizon and the Department of Correctional Services", CCR attorney Rachel Meerpol said. "The amicus briefs filed show that support for ending the contract and creating just rates for prison families is broad and deep: we hope that the court will take notice, but also that the new Governor will do the right thing and put a stop to this unlegislated, backdoor tax as one of his first priorities." . . . The lawsuit seeks an order prohibiting the State and MCI/Verizon from charging exorbitant rates to the family members of prisoners to finance a 57.5% kick back to the State. MCI is currently charging these family members a 630% markup over regular long distance consumer rates to receive a collect call from their loved ones, the only method of calling from a DOCS institution.


Pot smoking got him life

By Rick Casey, Copyright 2006 Houston Chronicle

The embarrassing publicity seems to have gotten to Judge Dean. He has asked Gov. Rick Perry to commute Brown's life sentence to the 16 years already served. . . . The judge gave no reasons and did not include a recitation of new facts that is required for the Board of Pardons and Paroles to recommend that the governor grant the commutation.

12-22-06 -- State Sen. John Whitmire says Tyrone Brown may be the "most recent poster child" for his campaign to make Texas justice smart as well as tough. . . . One of the problems, says the Houston lawmaker who chairs the Senate's Criminal Justice Committee, is judges who revoke probation for insufficient cause, filling $40,000-a-year prison beds with people who don't belong there. . . . One Harris County judge, he says, has a policy that any probationer who is more than 15 minutes late for a monthly meeting with his probation officer will be thrown in jail. . . . "A lot of these guys are on probation for driving under the influence," Whitmire said. "They can't drive, and public transportation isn't always reliable. They're going to be late." . . . Victim stunned by sentence / But that policy pales compared to the case of Tyrone Brown. Back in 1990 a Dallas district judge, Keith Dean, revoked Brown's probation and sentenced him to life for failing one urine test. . . . Because he smoked a joint, Brown, who was a teenager at the time of his crime, has been in prison ever since. . . . Brown was on probation because he had pleaded guilty to joining a friend in a hold-up. One of the youths — it's not clear which — held a gun while demanding the wallet of a worker leaving a restaurant. . . . They took $2 from the wallet. When the victim asked for the wallet back, they returned it to him and left. Prosecutors had sought a 5-year sentence. . . . The Dallas Morning News told Brown's story six months ago, which led to a piece by ABC's 20/20. . . . The robbery victim, reached in Virginia by the Morning News and told Brown was in prison for life, said, "Goodness gracious. You have got to be kidding me. ... Nobody touched me at all."


Vt. woman is an unlikely peace activist

Staff and agencies
By John Curran, Associated Press Writer

12-18-06 -- Meet the anti-war movement‘s newest folk hero: 69-year-old Rosemarie Jackowski, whose arrest during an anti-war protest has made her a cause celebre. . . . A prosecutor‘s plan to retry her for blocking traffic while protesting the Iraq war is turning the feisty 4-foot-10 inch former schoolteacher into a darling of the dove crowd.

"She‘s not a loony toon by any means," said Andrew Schoerke, 73, a retired U.S. Navy U.S. Navy captain who was arrested with her. "She‘s a very down to earth, sensible, caring person with some very strong convictions." . . . "It was really hard for me to stand there and just hold my sign," she said in an interview. "I came from a strict ethnic, religious background. I was taught to never ever be disobedient to anyone — teacher, parent, policeman. That was my very first act of disobedience to anyone." . . . To police, it wasn‘t funny. . . . "It wasn‘t about the war in Iraq," said police Lt. Paul Doucette, who ordered the arrests at the scene. "It was public safety at risk. This whole scene could‘ve turned very ugly very quickly. So we did what was best. Now all of them have paid the price, except this one." . . . She appealed to the Vermont Supreme Court, her attorney insisting that the disorderly persons charge could only stick if it were proven she intended to disrupt traffic. . . . Last week, Bennington County State‘s Attorney William Wright said he would seek to try her again.


'Jailhouse Lawyer' Lectures Harvard Law Students

Thomas 'Chris' O'Bryant Seeks to End the Types of Legal Mistakes that Landed Him Behind Bars for Life

By Gigi Stone & Mary Harris, ABC News

Harvard Law School students heard a remote lecture by Thomas "Chris" O'Bryant, inmate 124004 in the Florida Department of Corrections. (

12-18-06 -- Students at Harvard Law School learn from some of the finest legal minds in the world. But they can't always learn in a classroom the concrete ways their future work as attorneys may affect people's lives. . . . That's why they are riveted by a perspective in Professor Charles Ogletree's class delivered by a guest lecturer by speakerphone. He is speaking to them from prison, where he will remain for the rest of his life. . . . The voice belongs to Thomas "Chris" O'Bryant, inmate 124004 in the Florida Department of Corrections, who is a "jailhouse lawyer." . . . He taught himself the law so well that when he sent a handwritten submission to the Harvard Civil Rights-Civil Liberties Review, its editors were blown away by his legal acumen. They published his article earlier this year. . . . Now he lectures law students about what "life inside" is like, and how justice is actually administered. . . . "You see the newspaper about prison life, but I think it's probably different actually hearing from someone who's dealing with it on a day to day basis, " O'Bryant says.


Mistake not worth 30 years

By Letters To The Editor

Re: Warped justice ruins yet another man's life,

12-14-06 -- Congratulations for the excellent editorial. As a conservative Republican, law-and-order and even hard-nosed, I am outraged by Circuit Judge Ric Howard's grossly inappropriate sentences in each of the three cases described. . . . The sentencing in the case of William Thornton is the most egregious example of judicial bad judgment I have ever heard of. Thirty years in prison for an accident? That is shameful. For God's sake, it was an accident!

My understanding of the Thornton case is as follows:

- William Thornton was 17 years old, a good student with a part-time job and had never been in trouble before. He was not drinking or on drugs and it was not a hit and run. ---- He topped a hill and skidded into an intersection that has since had a warning sign installed before the crest of the hill, indicating negligence by the county at the time of the accident because there was no sign. ---- - The driver of the other vehicle was legally drunk (0.1102, that's far above the legal limit of 0.0800), which may have prevented him from taking evasive action. --- - Most important, weren't the deceased not killed by the impact, but died when they were thrown from their vehicle? And they illegally did not have their seat belts fastened, which would have protected them. --- - Were the deceased too drunk to fasten their seat belts or did they deliberately violate the law by leaving them unbuckled? Wouldn't they have survived the accident if they had buckled up, as the law requires, and what would the sentence have been if they had lived? Surely not 30 years.


‘Large’ number of postponed trials cause changes, concern

Luke Broadwater, The Examiner
12-07-06 -- Simmeon Anderson was charged in 2000 with attempted first-degree murder. Six years, a vacated verdict and 24 postponements later, he’s awaiting a January trial. . . . “This is a case that demonstrates all the different ways a case can be postponed,” said Margaret Burns, spokeswoman for the Baltimore City State’s Attorney’s Office. . . . Anderson’s postponements are emblematic of a problem dogging Baltimore City courts: Large numbers of cases being postponed, a situation that creates hardships for defendants, witnesses, victims and justice generally. . . . “It’s mind-boggling,” said Baltimore City Circuit Court Clerk Frank Conaway. “I’m afraid that postponements cause defendants to be released. The more times cases are postponed, the more likely it is to lose a witness or have people lose their memory.” . . . Conaway and Baltimore City Circuit Court Judge Brooke Murdock are co-chairs


Judge's outburst brings lawsuit

Inmate sues William Carter for $2 million, alleging treatment in court caused him pain, suffering

By Michele Morgan Bolton, Staff writer 

12-13-06 -- An inmate whose complaint about mistreatment resulted in City Court Judge William Carter being disciplined is now suing Carter for $2 million, claiming pain, suffering and a lasting fear of the judiciary. . . . Acting as his own lawyer, Talib Alsaifullah, 46, filed the civil rights violation lawsuit on Monday in U.S. District Court. He is serving a sentence for assault at Albany County Correctional Facility. . . . The state Commission on Judicial Conduct censured Carter in September for two outbursts, including one in which he stormed off the bench, shed his robes and eyeglasses, and confronted Alsaifullah. . . . A witness to the November 2004 courtroom confrontation testified that Carter, a former State Police officer and assistant district attorney, rushed the defendant, asking, "You want a piece of me?" . . . Carter didn't touch Alsaifullah or the officer who intervened to block him. He told officials he didn't recall making the verbal challenge, but did not refute the allegations.


Enough: Set This Man Free

Petty criminal's sentence should be commuted

Dallas Morning News Editorial

12-12-06 -- For Tyrone Brown, it never should have come to this. . . . Mr. Brown never should have been sentenced to life in prison after being busted for a $2 armed robbery and a marijuana violation. . . . He should not have suffered because his family could not afford a lawyer. It should not have taken a Dallas Morning News investigation to expose the unequal justice that was meted out when Mr. Brown was locked up for life while a well-connected man who shot an unarmed prostitute in the back walked free. . . . And Mr. Brown should not be relying on Gov. Rick Perry to take the rare step of commuting his sentence. Unfortunately for Mr. Brown, it has come to this. . . . We have urged a second look at this excessive punishment. And Dallas County District Attorney Bill Hill now is asking the governor to free Mr. Brown.


Commute This Sentence

A clemency case not even President Bush can ignore -- or can he?

Washington Post Editorial

12-11-06 -- THE SUPREME Court this week declined to review the case of Weldon Angelos, leaving in place his obscene sentence of 55 years in prison for small-time marijuana and gun charges. The high court's move is no surprise; the justices have tended to uphold draconian sentences against constitutional challenge. But it confronts President Bush with a question he will have to address: Is there any sentence so unfair that he would exert himself to correct it? . . . So far, Mr. Bush hasn't found one. He has commuted only two sentences, both of inmates who were about to be released anyway. Mr. Angelos, by contrast, is a young man and a first-time offender who is now likely to spend the rest of his life in prison. His crime? He sold $350 in marijuana to a government informant three times -- and carried, but did not display, a gun on two of those occasions. Police found other guns and pot at his house. The U.S. district judge who sentenced him in Utah, Paul G. Cassell, declared the mandatory sentence in this case "unjust, cruel, and even irrational." He noted that it is "far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape." And in an extraordinary act, he explicitly called on Mr. Bush to use his clemency powers to offer what he as a judge could not: justice. Judge Cassell recommended that Mr. Bush commute the sentence to 18 years, which he described as "the average sentence recommended by the jury that heard this case."

Religion for a Captive Audience, Paid For by Taxes

By Diana B. Henriques & Andrew Lehren

12-11-06 -- Life was different in Unit E at the state prison outside Newton, Iowa. . . . The toilets and sinks — white porcelain ones, like at home — were in a separate bathroom with partitions for privacy. In many Iowa prisons, metal toilet-and-sink combinations squat beside the bunks, to be used without privacy, a few feet from cellmates. . . . The cells in Unit E had real wooden doors and doorknobs, with locks. More books and computers were available, and inmates were kept busy with classes, chores, music practice and discussions. There were occasional movies and events with live bands and real-world food, like pizza or sandwiches from Subway. Best of all, there were opportunities to see loved ones in an environment quieter and more intimate than the typical visiting rooms. . . . But the only way an inmate could qualify for this kinder mutation of prison life was to enter an intensely religious rehabilitation program and satisfy the evangelical Christians running it that he was making acceptable spiritual progress. The program — which grew from a project started in 1997 at a Texas prison with the support of George W. Bush, who was governor at the time — says on its Web site that it seeks “to ‘cure’ prisoners by identifying sin as the root of their problems” and showing inmates “how God can heal them permanently, if they turn from their sinful past.” . . . One Roman Catholic inmate, Michael A. Bauer, left the program after a year, mostly because he felt the program staff and volunteers were hostile toward his faith. . . . “My No. 1 reason for leaving the program was that I personally felt spiritually crushed,” he testified at a court hearing last year. “I just didn’t feel good about where I was and what was going on.” . . . For Robert W. Pratt, chief judge of the federal courts in the Southern District of Iowa, this all added up to an unconstitutional use of taxpayer money for religious indoctrination, as he ruled in June in a lawsuit challenging the arrangement.


Punishing prisoners at all costs

California's prisons are in crisis because of harsh sentencing laws that don't treat violent and nonviolent criminals much differently.

By Joe Domanick  Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," is senior fellow in criminal justice at the USC Annenberg Institute for Justice
12-11-06 -- IN 1977, CALIFORNIA made a momentous decision that is still sending shock waves through the state's prison and parole systems. In response to the public's rising fear of crime, the Legislature changed the goal of incarceration from "rehabilitation" to "punishment." To that end, lawmakers over the next decade passed more than 1,000 bills toughening and lengthening prison sentences. They also instituted "truth in sentencing" policies that required prisoners who committed certain crimes to serve 85% of their sentence before they were eligible for parole. Then, in 1994, voters overwhelmingly approved a three-strikes law mandating a sentence of 25 years to life for a third felony conviction and a doubling of a sentence for a second strike. . . . Criminal justice experts estimate that as much as 25% of California's — and the nation's — decade-long crime decline is attributable to this punish-all-criminals strategy. But the approach has come at a huge cost. The longer sentences have swelled the inmate population far beyond the capacity of our prisons and contributed to the rise of an older criminal class, especially in California. In Los Angeles County, for instance, felony arrests and incarceration of 40- to 59-year-olds have jumped dramatically, a stunning development given that criminals tend to commit fewer crimes as they reach their mid-20s and fewer still as they grow older. But in L.A. County, 40- to 59-year-olds are incarcerated at a rate 1,200% higher than in 1980. Many return to prison because of technical violations — failing drug tests or missing a parole appointment.


Warped justice ruins yet another man's life

A Times Editorial

12-04-06 -- Another young man guilty of committing serious offenses appears before Circuit Judge Ric Howard fully expecting to pay for his actions but also, naively, believing that he will be treated fairly. Instead, he receives a punishment that meets the basic rules for a legal sentence but fails the test for true justice. . . . In an all-too-familiar scenario last week in the Citrus County courthouse, Howard - who lives in Hernando County and is elected by voters of the five-county 5th Judicial Circuit - again imposed a cruel punishment on a young man who was foolish enough, or poorly advised, to put himself at the mercy of a judge who has demonstrated that that trait is in short supply. . . . Jason Aron Hill of Beverly Hills admitted that he had sex several times with his girlfriend. This became a crime because Hall is 19, an adult, and the girl is 15, a minor. Also, after smoking marijuana and being bored, the two set paper towels on fire and nearly burned to the ground a gazebo belonging to the Beverly Hills Recreation Association. . . . Make no mistake, these are serious offenses. Hall, a high school dropout, should have known better than to have sex, even consensual, with a 15-year-old. Plus, he violated his pretrial release orders to stay away from her. And he initially denied to authorities that the two had been intimate. . . . Hall was also 20 minutes late to his court appearance, which incensed the judge. . . . The Jan. 25 fire caused about $25,000 in damage. The group's insurance rates doubled as a result, putting the association in such dire financial straits that four part-time workers had to be laid off. . . . Clearly, the association deserved to be made whole again financially, and Howard ordered Hall to pay restitution. The judge admitted it was unlikely that Hall, a fast food worker, would ever be able to come up with that kind of money. Then he made certain that Hall would never be able to repay that debt by sending him to prison. . . . Hall, who had no prior criminal offenses cited at his court appearance, certainly deserves punishment for his irresponsible acts. Howard could have ordered probation with the requirement that he get counseling for his behavioral problems and that he become a virtual indentured servant to the Beverly Hills Recreation Association, working off his restitution through several hundred hours of community service. . . . Such a sentence could have resulted in turning around the life of a young man whose parents told the court that he was irresponsible and immature. But Howard told the audience that he views the primary mission of the justice system as punishing, not helping, people.

Federal Judges Fear Dangers of Online 'Rat' Site

By Matt Apuzzo, Associated Press Writer

12-01-06 -- Police and prosecutors are worried that a Web site claiming to identify more than 4,000 informants and undercover agents will cripple investigations and hang targets on witnesses. . . . The Web site,, first caught the attention of authorities after a Massachusetts man put it online and named a few dozen people as turncoats in 2004. Since then, it has grown into a clearinghouse for mug shots, court papers and rumors. . . . Federal prosecutors say the site was set up to encourage violence, and federal judges around the country were recently warned that witnesses in their courtrooms may be profiled online. . . . "My concern is making sure cooperators are adequately protected from retaliation," said Chief Judge Thomas Hogan, who alerted other judges in Washington's federal courthouse. He said he learned about the site from a federal judge in Maine. . . . The Web site is the latest unabashedly public effort to identify witnesses or discourage helping police. "Stop Snitching" T-shirts have been sold in cities around the country and popular hip-hop lyrics disparage or threaten people who help police. . . . In 2004, NBA star Carmelo Anthony appeared in an underground Baltimore DVD that warned people they could be killed for cooperating with police. Anthony has said he was not aware of the DVD's message.

Such threats hinder criminal investigations, said Ronald Teachman, police chief in New Bedford, Mass., where murder cases have been stymied by witness silence and "Stop Snitching" T-shirts were recently for sale.

November 2006


What You Should Know If You're Accused Of A Crime

© 1998 - Joyce B. David, Attorney at Law

"Reprinted from the 5th edition of Joyce David’s handbook (originally published in 1986).  You may copy this book and share it with your family and friends as long as you include the copyright notice; do not make any changes; and do not sell copies."


11-20-06 -- Anyone confronting the bewildering and, to many, the intimidating and nerve shattering complexities of the New York State criminal justice system for the first time in his or her life, will find Joyce David's handbook outlining the ABC's of the system an invaluable tool in dealing with them. . . . A highly-respected attorney with a wealth of first-hand experience in all aspects of criminal law, Ms. David's thorough, step-by-step description of what a criminal case is all about, written in language readily understood by the average layman, unschooled in legal procedures and terminology, will do much to ease the pain of that first encounter with the law. . . . Ms. David, expertly and concisely, spells out just what he or she may expect at every stage of the case, explaining just what will happen and why. . . . As she points out correctly in her own introduction, those exposed for the first time to the criminal justice system often feel as though they are in a foreign country, with strange new rules, procedures and language.


Judge gives Mobile man the max -- again

Ordered to recalculate sentencing guidelines, Pensacola jurist opts anew for lengthier prison term for Jessie Scott

By Brendan Kirby, Staff Reporter

11-20-06 -- A Mobile man facing the maximum punishment for threatening a federal judge won a new sentencing hearing earlier this year, but on Monday, he learned he had gained nothing. . . . Senior U.S. District Judge Lacey Collier, brought to Mobile from Pensacola to preside over the case after the local federal judges recused themselves, stunned the courtroom last year when he ignored the sentencing guidelines and ordered Jessie Scott to prison for 10 years -- the maximum allowed by law -- for threats he made against the judge who sentenced him in another case. . . . The Atlanta-based 11th U.S. Circuit Court of Appeals overturned the sentence in March, ruling that Collier had failed to properly calculate the punishment Scott faced under the guidelines.


C.A. Revives Inmate’s Contract Claim Against Former Attorney

By a MetNews Staff Writer

11-02-06 -- A convicted defendant did not have to prove he was actually innocent in order to sue his former attorney for negligently failing to obtain the return of property he was entitled to recover, and for unearned legal fees, this district’s Court of Appeal has ruled. . . . Reversing a summary judgment order by Los Angeles Superior Court Judge Andria K. Richey, Div. One on Monday reinstated a lawsuit by John S. Brooks against Century City attorney Joseph Shemaria. . . . Brooks had retained Shemaria in April 2001 at a cost of $50,000 to defend him against a single drug manufacturing charge. The lawyer had allegedly agreed to refund to Brooks any unused portions of the retainer fee, which was to cover both the cost of representation through trial and of seeking the return of his seized property. . . . In June 2002, Brooks was convicted and sentenced to 10 years in prison after pleading no contest to the charge and admitting a special allegation of transportation, sale, or distribution of a controlled substance. . . . The following year, Richey heard Brooks’ motion for the return of personal property that had been seized by the authorities. Granting it in part, she directed the return of all paperwork except for his drug-manufacturing instructions but ordered the destruction of several seized firearms, although two guns that the judge found belonged to other people were ordered returned. . . . Although Brooks moved for reconsideration of the order as to the firearms, the motion was taken off calendar when Shemaria twice failed to appear on his behalf. . . . Not knowing that Brooks had been incarcerated, the Ventura County Sheriff’s Department wrote to him at his last known address to inform him he could retrieve certain items of seized property including his financial records, computer and electronic storage media, cell phone and pager. When the letter was returned, the sheriff disposed of the property. . . . The rest of the property that had been ordered returned to Brooks was also destroyed because it was never retrieved.

Actual Innocence . . . Representing himself, Brooks in December 2003 sued Shemaria for breach of contract due to his failure to refund unused portions of the retainer fee, and for professional negligence concerning the seized property. . . . Richey granted Shemaria’s summary judgment motion as to both claims, based on case law which says that to recover for malpractice, a convicted defendant must first obtain the reversal or vacatur of the conviction and then prove in the tort action that he or she was actually innocent. . . . That trial judge was in error, the Court of Appeal said, because the case law does not apply to fee disputes or to other collateral matters such as return of property. . . . As to the contract claim, Justice Frances Rothschild explained for the court: . . . “The primary right Brooks seeks to vindicate is the right to be billed in accordance with the terms of the retainer agreement, i.e., to have Shemaria’s compensation governed by those terms. It has nothing to do with the quality of Shemaria’s representation or with Brooks’ guilt or innocence. The actual innocence requirement therefore does not apply.”


Inside Bomber Row

How America's Most Dangerous Criminals Mix With A Who's Who Of The Global Jihad In A Colorado Prison

By Maryanne Vollers

Flashback: Eric Rudolph?s Long Run Ends

Highway 50 runs straight as a pool cue from Pueblo, Colo., through 23 miles of rangeland and piñon flats before offering an exit to the scruffy little city of Florence (pop. 3,795). Like Flint, Mich., or Orlando, Fla., Florence is a company town. The industry here is prisoners, and the company is the Federal Bureau of Prisons. Twenty years ago, the people of surrounding Fremont County ponied up $160,000 to buy some open land outside Florence, hoping to entice the bureau to build a prison complex as a way to boost the town's economy. Corrections had long been a mainstay in Fremont County; the high desert valley was already home to more than half a dozen prisons. But in the end, Florence got a little more than it bargained for. . . . The 600-acre Federal Correctional Complex, which was completed in 1994 on the outskirts of town, is a virtual theme park of penal experiences, ranging from a minimum-security camp for inside-traders and small-time pot dealers to the concrete fortress that was built to be the most secure prison in the country: the Administrative Maximum U.S. Penitentiary, or ADX for short. The inmates in ADX Florence include drug kingpins, gang leaders, hit men, snipers and, lately, more and more, international terrorists, including al-Qaeda shoe bomber Richard Reid; mastermind of the 1993 World Trade Center bombing Ramzi Yousef and at least seven of his accomplices; and four men convicted of involvement in the 1998 bombings of U.S. embassies in Africa. There are American terrorists too. Timothy McVeigh, the Oklahoma City bomber, spent time there before being transferred to Indiana, where he was executed in 2001. His accomplice, Terry Nichols, is still at ADX, as is Theodore Kaczynski, the Unabomber. The common thread running through the crimes committed by these men accounts for the nickname given to the highest-security section of the prison: Bombers Row. . . . Until now, almost nothing has been written about the inner workings of the ADX. Since 9/11, journalists have been routinely denied access to the facility, its staff and inmates. But Eric Robert Rudolph, who is serving life without parole at the prison for the fatal bombings at the Atlanta Olympics and an abortion clinic in Alabama, has written letters to me, the author of a book about his case, and to his mother Patricia Rudolph, who has shared them with me. These missives offer a unique first-hand account of life on Bombers Row.


$127,000 in Fees Are Voided for Former Prison Journalist

By The Associated Press

11-06-06 -- A former prison journalist does not have to pay the $127,000 in court costs that a state district judge assessed him last year, the state’s Third Circuit Court of Appeal ruled on Friday. . . . The district judge, David A. Ritchie, lacked the legal standing to seek the recovery of some of the money, Judge Sylvia R. Cooks wrote in the appeals court decision. Also, because Louisiana law requires parishes to pay court expenses, Judge Ritchie had no authority to seek payment of court costs, Judge Cooks wrote. The parish must do so, she said. . . . The former prisoner, Wilbert Rideau, served 44 years in prison for killing a bank teller in 1961. . . . He was convicted of murder three times, but each time an appeals court threw out the verdict, citing misconduct by the government; at a new trial in January 2005, he was convicted of manslaughter. He was sentenced to the maximum 21 years in prison. Judge Ritchie gave him credit for time served, making him eligible for immediate release. . . . Also, Judge Ritchie ordered Mr. Rideau “to pay all court costs associated with these proceedings,” but did not initially detail those costs. In March 2005, Judge Ritchie ordered Mr. Rideau to pay itemized court costs and indigent defendant fees totaling $127,905.


Is a trial unfair if accused can't confront accuser?

The Supreme Court looks at the conviction in a 1988 child-abuse trial. One possible outcome is a flood of appeals.

By Warren Richey | Staff writer of The Christian Science Monitor

11-02-06 -- In 1988, Marvin Bockting was accused of sexually abusing his 6-year-old stepdaughter. The little girl told her mother and a police detective about the alleged abuse, but she became too upset to testify at Mr. Bockting's trial in Nevada. . . . Instead, the girl's mother and the detective testified about what she had told them of the alleged sexual assault. Bockting was convicted and sentenced to life in prison. . . . Now, 18 years later, Bockting is seeking to overturn his conviction based on a 2004 US Supreme Court decision in a case called Crawford v. Washington. In that case, the Supreme Court strongly reaffirmed the constitutional right to confront one's accusers in court. At the same time, the court struck down a rule that had allowed the introduction at trial of testimonial statements made by a potential witness prior to the trial. . . . Bockting says his trial was unfair because his jury was never allowed to gauge the veracity of his stepdaughter's accusations through the crucible of cross-examination in open court. . . . Wednesday, the Supreme Court takes up Bockting's case to decide whether the high court's 2004 ruling should be applied retroactively to his 1988 child-abuse trial.


NYS Bar Delegates to Consider "Collateral" Impact of Crime

New York Lawyer, By John Caher, New York Law Journal

11-02-06 -- Roughly one-third of the people arrested in New York are never convicted of anything, but are nonetheless hindered by job and housing discrimination and essentially punished - sometimes in perpetuity - for an offense they did not commit, according to a New York State Bar Association report.

"The great number of people who are arrested but never convicted of any crime are still 'punished' - i.e, their reputation is damaged-by the mere fact of having been charged with a crime," according to the state bar's Special Committee on Collateral Consequences of Criminal Proceedings, chaired by Peter. J.W. Sherwin of Proskauer Rose. "Over 36 percent of all arrests in New York in 2004 did not result in conviction."

However, the committee's report said that "the fact of an arrest is now more readily known than ever due to the ready access to computer databases." It said 80 percent of large corporations now perform background checks on applicants, up from 51 percent just eight years ago, and 69 percent of small employers do the same. Additionally, it said landlords routinely run background checks.

The state bar began studying the issue in December 2004, under the leadership of then-president Kenneth G. Standard. Its report, and several others, are available at the Columbia Law School Web site,


Judge Tells Baumgartner She Can't Review Own Case File

© 2006 North Country Gazette

11-3-06 ---In the wake of one of her defense attorneys being suspended from practicing law as he was preparing motions to present in the myriad of criminal charges against her, former Ohio attorney and pharmacist Elsebeth Baumgartner has asked Cuyahoga County Commons Pleas Court Judge Shirley Strickland Saffold to recuse herself. . . . Revealing highly biased and prejudicial statements allegedly made against her by Saffold in the presence of other attorneys and disclosing the unconstitutional order issued by Saffold that she cannot have access to her own court file, Baumgartner says that judicial canons require Saffold to remove herself from the case. . . . She also says that the record will support that Saffold has egregiously violated her constitutional rights in a case which is based on free speech issues and an individual's right to criticize public officials and post comments on their own blog.


Viewing child porn not a crime, panel rules

By Pete Shellem Of The Patriot-News

11-3-06 ---Just looking at child pornography on the Internet is not a crime under Pennsylvania law, a state Superior Court panel ruled yesterday. . . . For prosecutors to charge someone with illegally possessing child porn, they must show the person knowingly saved the images, according to the three-judge panel. . . . If the state Legislature wants to criminalize the mere viewing of child porn on Web sites, then it needs to change the law, the panel ruled. . . . The case, which marked the first time the court addressed the issue, involved a Delaware County man who admitted knowingly viewing 370 child-porn images online. But the judges ruled he could not be convicted of possessing child porn because he did not know his computer was storing the photos. . . . Computers automatically save images viewed on a Web site to a cache on the computer's hard drive. Anthony R. Diodoro, 26, of Milmont Park, Delaware County, admitted intentionally viewing the child-porn images, but said he was unaware they were being saved.

You can access the ruling at this link. A key passage from the unanimous three-judge pane's opinion states, "Although the pornographic images were automatically saved to an internet cache file on the computer's hard drive, there is no evidence that Diodoro knew that the images were saved. Therefore, the issue is whether merely viewing child pornography on the internet without intentionally saving or downloading any of the images constitutes 'knowing possession' of child pornography under section 6312(d). We conclude that it does not."

October 2006


Federal judge says inmate saved his life, cuts sentence
10-28-06 -- Federal Judge G. Ross Anderson Junior showed his gratitude when sentencing an inmate who alerted authorities to a plot to kill the judge. . . . Anderson asked Maurice Rice on Friday if he was the man who turned in the people planning to kill Anderson. Rice said he was the one. . . . Two years ago, Anderson had sentenced Rice to almost eleven years in prison for a cocaine trafficking conviction in Spartanburg County. On Friday, Anderson reduced that sentence to three years. . . . Assistant US Attorney Walt Wilkins said he asked for a sentence reduction because of Rice's cooperation with investigators on several cases, including a supposed plot to kill Anderson.

Judge sides with inmate over mail

2003 Bureau of Prisons limits on materials deemed unconstitutional

By The Associated Press

10-28-06 -- An inmate at the nation's most secure prison has won a lawsuit challenging the Bureau of Prisons' restrictions on the types of reading materials inmates are allowed to receive by mail. . . . Mark Jordan, 30, who is expected to be released in 2048 from the "Supermax" prison for bank robbery and the June 1999 stabbing death of a fellow inmate at the U.S. Penitentiary in Florence, sued the agency in 2003, claiming his rights were violated when certain materials he was sent by mail were denied to him. . . . He claimed a 2003 prison regulation was unconstitutional, and on Thursday, U.S. District Judge Phillip Figa agreed, saying it was too broad.


Prison 'a Financial Plan' for Ohio Robber

The Associated Press
10-13-06 -- A Columbus, Ohio, man who couldn't find steady work came up with a plan to make it through the next few years until he could collect Social Security: He robbed a bank, then handed the money to a guard and waited for police. . . . On Wednesday, Timothy J. Bowers told a judge a three-year prison sentence would suit him, and the judge obliged. . . . "At my age, the jobs available to me are minimum-wage jobs. There is age discrimination out there," Bowers, who turns 63 in a few weeks, told Judge Angela White. . . . The judge told him: "It's unfortunate you feel this is the only way to deal with the situation." . . . Bowers said he had been able to find only odd jobs after the drug wholesaler he made deliveries for closed in 2003. He walked to a bank and handed a teller a note demanding cash in an envelope. The teller gave him four $20 bills and pushed a silent alarm.


Attorney: Contra Costa misses deadline to re-try killer

By Bruce Gerstman, Contra Costa Times

Contra Costa County has missed a deadline to retry a convicted murderer whose first conviction was thrown out for racial bias on the jury, his attorney said Tuesday. . . . A U.S. District Court Judge ruled July 10 that Aldridge Currie must get a new trial in 90 days or be released, said attorney Barry Morris. . . . The 92nd day was Tuesday, Morris said. . . . "They didn't try him in the 90 days," Morris said. "The prison has to release him." . . . Department of Corrections spokeswoman Terry Thornton said the county where the inmate was tried is usually responsible for bringing prisoners back for their re-trials. . . . District Attorney Bob Kochly said he was not familiar with the time limit set by the judge. . . . Usually, Superior Court officials receive notice from the appellate court about the time limit, he said.

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Authorities say robbery suspect worked as prison guard
A suspect in an attempted robbery of an A-T-M at a credit union in Arkansas says he works as a guard at the Telford Unit in Texas. . . . Little River County authorities say 25-year-old Roy Rogers Robinson Junior of Nash, Texas, told them he works at the prison and was having trouble making ends meet. . . . Robinson and his brother, 17-year-old Ronnie Glenn Robinson, also from Nash, were arrested for allegedly breaking into an automated teller machine and trying to steal money. . . . Two men were caught on surveillance video at the credit union near Ashdown, Arkansas. . . . A photo published Saturday in the Texarkana Gazette generated tips that led to the men, who were staying at a motel.


State banning smoking at women's prison

By Associated Press

10-17-06 -- The Women's Community Correctional Center will ban smoking next month, becoming the only state prison that does not allow inmates to light up. . . . Acting warden Eric Tanaka has already notified the more than 250 convicts at the Kailua prison cigarettes will be prohibited after Nov. 16. . . . Staff at the prison estimate more than half of the inmates are smokers. . . . The prison medical unit plans to make nicotine patches and other items available to help the inmates quit.


Prison Inmates Bring Pumpkins to Kids

Kevin MacDonald

10-17-06 -- Halloween brings out the spirit of giving for inmates from Lansing Correctional Facility. . . . "We've been loading up the van and getting ready to do this for the last couple of weeks," Josh Berkstresser, Lansing inmate, said. . . .Thousands of pumpkins, homegrown, and all for the kids. . . . "Just watching them all come out here and smile and say thank you makes you feel happy," Berkstresser said. . . . The sounds of kids lucky enough to get one of the larger pumpkins is music to the ears of these men, trying to live on a straightened path. . . . It's what Janice Sellers tells her kids about these smiling strangers who are handing them pumpkins.


Patrol probes death in prison of mentally ill Cleveland man

Ted Wendling, Plain Dealer Bureau Chief

10-17-06 --The State Highway Patrol is investigating the death last Wednesday of a mentally ill Chillicothe Correctional Institution inmate from Cleveland who died following a struggle with guards inside the Ross County prison.

Samuel L. Underwood, 27, was pronounced dead at 6:28 p.m. at Adena Regional Medical Center in Chillicothe, about 90 minutes after an altercation, prison spokeswoman Leta Pritchard said Monday. . . . Neither Pritchard nor a patrol spokesman would say how Underwood died, but Underwood's mother, Virginia Sherrod of Oberlin, said Warden Tim Brunsman told her that her son suffered respiratory arrest while being restrained.

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 For Grisham, a new turn into non-fiction

By Carol Memmott, USA TODAY

John Grisham's downtown office in this quaint college town is packed with 12-inch-high stacks of court documents, box after box of medical records and hundreds of photographs. . . . They are part of the paper trail that tells the story of Ron Williamson, a once promising ballplayer who spent 11 years on Oklahoma's death row for a rape and murder he did not commit. It might have been the whole story of Williamson's life — until Grisham read his obituary in December 2004. . . . Grisham found Williamson's real life just as compelling as the stories he has told in his hugely successful legal thrillers. "It just had everything," Grisham says. "A wrongful conviction, the near execution, the exoneration, the mental illness, the insanity, the baseball." . . . Grisham, 51, was so taken by the Ada, Okla., native's story that it has changed the course of his career. The author of 18 best-selling novels has now written his first non-fiction book, The Innocent Man: Murder and Injustice in a Small Town (Doubleday, $28.95), on sale Tuesday.


Prison life, here, there

10-9-06 -- California's prison overcrowding situation hasn't exactly been a secret. Using dining rooms and hallways to house inmates has for several years been standard operating procedure at most of the state's prisons. . . . It should come as no surprise then that Gov. Arnold Schwarzenegger declared a state of emergency in the prison system, and announced a plan to export thousands of inmates - in order to make room for more. . . . At first glance, it seems like a solid strategy. California taxpayers pay an average of just under $33,000 a year to house an inmate in a state prison. If that felon could be shipped, say, to Indiana's privately-operated prison system, the cost could be reduced to about $22,000 a year. . . . But there's a problem. The California Penal Code requires an inmate's consent to be shipped out of state. But maybe it's not such a problem. In a recent survey, nearly 20,000 California inmates said they'd be willing to be moved. Maybe they think cell life would be better somewhere else. . . . Schwarzenegger has been criticized for waiting this long to declare the state of emergency. His Democratic opponent in the governor's race, Phil Angelides, said the move should have been made years ago, calling it “Schwarzenegger's prison mess.” . . . Such bombast ignores reality. California's prisons have been barreling toward a train wreck for many years, due largely to voters demanding tougher sentencing laws.

It's Good To Have Friends

IFI Ruling Appealed

By Mark Earley

Note: This commentary was delivered by Prison Fellowship President Mark Earley.
10-3-06 -- It’s good to have friends in any fight. But it’s especially good to have friends when you’re in a legal battle. As you know from listening to “BreakPoint,” the InnerChange Freedom Initiative, or IFI, a groundbreaking faith-based pre-release program for prisoners launched by Prison Fellowship, has been ordered to shut down in Iowa by a federal judge. The judge sided with Barry Lynn and the Americans United for Separation of Church and State and ruled that the program violates the establishment clause of the Constitution. He also took the unprecedented step of ordering IFI to repay the state of Iowa some $1.7 million—even though IFI performed its services in good faith under a valid contract, and even though 60 percent of all the funding was raised privately. Well, on September 13, Prison Fellowship, IFI, and the state of Iowa filed an appeal of the judge’s ruling to the Eighth Circuit Court of Appeals. . . . Then, a week later, several organizations filed what is called a “friend of the court” or “amicus” brief supporting IFI. . . . It won’t surprise you that one of the friendly briefs filed in support of IFI was by the Alliance Defense Fund on behalf of several faith-based organizations. They strongly objected to the judge’s assertion that rehabilitative treatment was a “function traditionally reserved to the state.” As well they should have objected, since nothing could be further from the truth. America has a long and rich tradition of faith-based groups reaching out to prisoners, beginning with the Quakers in the 1700s.

September 2006

A prison reform program that works
By Jay Sekulow

9-25-06 -- For decades, Prison Fellowship Ministries has done a fantastic job at prisoner reform. In fact, statistics show that recidivism rates are as low as 8% as compared with 60% for non-faith-based programs. Those incarcerated should have a faith-based option. . . . Today we filed an amicus brief with the U.S. Court of Appeals for the Eighth Circuit in St. Louis, Missouri asking the appeals court to overturn a lower court decision ordering the InnerChange Freedom Initiative (IFI) and Prison Fellowship Ministries to reimburse the state of Iowa $1.5 million dollars the state paid IFI to run a faith-based prison rehabilitation program. . . . This is a constitutionally sound and highly effective faith-based program that helps turn troubled lives around. The lower court decision not only removes an effective program with a proven track record, it creates a chilling effect by ordering restitution. We’re hopeful the appeals court will correct this flawed decision and uphold the constitutionality of this important program. . . . In our brief, we contend that “if the IFI program were to be dismantled and penalized (especially by the million-dollar-plus restitution order in this case) under the decision below, this would both punish a successful program and profoundly deter any similar program in the future. . .”


Jail mix-up strands man behind bars

Dallas County inmate joins dozens held too long; officials blame overcrowding

By Kevin Krause / The Dallas Morning News

9-18-06 -- Orton P. Wilson's handwritten letter to a judge from his jail cell seemed to anticipate the problem that would leave him confined to his cell for three months with no pending charges against him. . . . Yes, he had missed a hearing for failure to pay child support, he wrote, but it was because he had been arrested on an unrelated charge two days before. . . . The letter never reached the judge, and court officials never knew he was in jail. . . . The error was discovered by chance – a lawyer who was looking for the 29-year-old DeSoto man to testify in an unrelated case notified court officials last month, and Mr. Wilson was quickly released. Otherwise, he might still be in the Lew Sterrett Justice Center, said the lawyer, Gregory L. Koss. . . . Mr. Wilson's case is the latest to surface of an inmate being lost in the crowded Dallas County Jail. . . . At a time when county officials want to reduce crowding, the jail has become a black hole for some defendants whose cases were swallowed up by a criminal justice system bursting at the seams. . . . Mr. Wilson's case, like two recent instances in which seat-belt violators sat in jail for several days, involved a communication mix-up between the Sheriff's Department and the courts. . . . Criminal justice experts say the problem lies with an overflowing jail and not enough court and jail staff to process prisoners cycling through the system. . . . Mr. Wilson's case is similar to that of Walter Mann Sr., a 69-year-old indigent man suffering from schizophrenia who was locked up for 15 months last year after missing a hearing on a contempt charge. . . . Computer error left dozens of inmates stranded in jail after the troubled January 2005 launch of the county's new inmate-tracking system. The Dallas Morning News found at least 40 cases in which defendants were in the jail longer than they should have been after the launch of the Adult Information System, or AIS. . . . "There's no such thing as a perfect system, but there's a lot of apathy," said Mr. Koss, the Dallas lawyer whose inquiry got Mr. Wilson released. "I don't think they care."

Justice sysem must address mental illness

by Greg Mathis
9-15-06 -- Untreated, mood disorders, such as bipolar disorder, can lead to violent, and sometimes criminal, behavior. Knowing this, it's no surprise that over half of the men and women in America's jails and prisons are mentally ill.  Instead of necessary treatment, these men and women - most of them of color - get jail time.  Given the rising prison population and the societal costs to imprison men and women, it's time the justice system treat, not incarcerate, mentally ill offenders.  These individuals can, with the proper therapy and medication, be rehabilitated.  The government just has to be willing to make the investment. . . . According to a study released by the U.S. Department of Justice, 56-percent of state inmates, 45-percent of federal prisoners and 64-percent of those in local jails are mentally ill.  Incarcerated women tend to have higher rates of mental illness than men.

Defendants' Web Sites Make Their Lawyers Squirm

By Peter Geier, The National Law Journal

9-15-06 -- Gregory Wright has spent the last decade as a death row inmate in Texas, as the sole perpetrator of a murder for which another man later was convicted. . . . Or so say Wright's wife and supporters on the newly launched Web site, . . . Wright's supporters recently joined the growing number of criminal defendants and convicts seeking public exposure of perceived injustices by posting their stories on the Internet -- in this case with the aim of getting the Texas courts to take his appeals seriously. . . . But criminal defendants and their supporters who use the Internet to advance their cases are causing at least one unintended effect: They're making their own attorneys uncomfortable. . . . Bruce Anton of Dallas criminal defense firm Sorrels, Udashen & Anton, who now represents Wright, said that he is philosophically against such Web sites. He believes that cases should be tried in court. But Anton said he cannot prohibit clients and their supporters from having Web sites -- especially those on death row. . . . "A Web site can be a two-edged sword," Anton said. "On the plus side, publicity about a case can help bring in additional investigation funds and support outside the legal community, but it can be a problem when something posted on a Web site can be inferred to be an official statement from the defendant."

Article of the week from Missouri Lawyers Weekly:

Supreme Court orders man's release on probation
Case sets out judges' power over probation

By Scott Lauck

9-18-06 -- In a lightning-fast decision, the Missouri Supreme Court ordered a man released from prison after ruling that a circuit court judge had failed to release him on probation.

The ruling, issued only two days after the case was argued before the court on Sept. 13, not only frees Charles Mertens almost exactly a year after his probation was initially denied but also offers some clarity to circuit judges' powers over offenders after they have been through a Department of Corrections program.

Mertens was sentenced in May 2005 to five years in prison for involuntary manslaughter and four years for leaving the scene of an accident, after he had killed a woman in a drunken driving accident in Cole County. The sentences were to be served concurrently, and Mertens was recommended to take an institutional 120-day treatment program, which he did.

After Mertens successful completed the program, the Missouri Board of Probation and Parole recommended he be given probation. However, on Sept. 9, 2005, Judge Thomas J. Brown III denied the probation without a hearing.

Missouri laws on probation were changed in 2003 to give the Probation and Parole board most of the discretion on whether or not an offender should be released. Under the law, the circuit court must follow the board's recommendation unless the court finds that there was an abuse of discretion. Such a finding must be made at a hearing to occur between 90 and 120 days of the offender's sentence.

In its per curiam ruling, the Supreme Court found that for Brown to deny probation he needed to have held a hearing on the matter within 120 days. Because he hadn't - and because the 120-day period was long over - Mertens had to be released.

"(Judge Brown) incorrectly failed to place Mertens on probation," the court wrote. "He has discretion as to the terms of probation, but he is required to grant probation."

Mertens' lawyer, Douglas Hennon of Carson & Coil PC in Jefferson City, said the ruling clearly set out the powers over probation that judges have under the law.

"The law was not unclear before, but maybe this provides an exclamation point... that after 120 days, a trial court has no jurisdiction over individuals sent to the Department of Corrections," Hennon said. "It's not OK to just deny the hearing, and if the individual challenges the denial of the hearing you can just give him one later."

The Missouri Attorney General's Office declined to comment in the case. In its briefing papers, it argued that Brown had an obligation to keep a potentially dangerous offender off the streets, and that the lack of a hearing was merely a "procedural error."

"Releasing Mertens without a hearing based on a mere procedural omission would be extremely poor policy because it would turn probation proceedings under (state statute) into a game," Assistant AG Andrew Hassell wrote. "Defendants would search for any and all procedural flaws in a judge's decision to deny them from probation as those flaws would grant them automatic release."

In another twist, the Mertens case also clarified that the various circuit courts don't have the power to order one another to take some action. Initially, Mertens filed his appeal in St. Francois County, where he is incarcerated at Bonne Terre Correctional Center. The St. Francois Circuit Court ruled last December that Mertens had been detained illegally.

However, the court remanded the case to Cole County with an order than the hearing be held. Although neither Hennon nor the AG's office questioned that move, the Supreme Court noted in its order that, besides the fact that the 120-day period had expired, "one circuit court has no supervisory authority over another circuit court to order the correction of errors." Only the Supreme Court and the courts of appeal have that power, the court wrote.


Whistle-blower gets taste of vindication

Prison safety officer honored — by mail

By Michael Doyle, Bee Washington Bureau

9/8/06 -- Leroy Smith paid a price for blowing the whistle at Atwater federal prison. Thursday, the Bush administration paid him back with some honors. . . . Smith's work was vindicated, but that does not erase the pain he endured. The Office of Special Counsel named Smith its 2006 Public Servant. The award recognizes the prison safety officer as the nation's "outstanding whistle-blower." . . . But 15 minutes before the ceremony was set to start, Smith said, his attorney learned the event was being canceled. . . . Instead, he was advised his award and certificate were being dropped in the mail.


Prison, jail staff cited in sex cases

Data show that in Va. and U.S., female workers cited in bulk of offenses with prison inmates

By Frank Green, Times-Dispatch Staff Writer

9-9-06 -- Roughly half of all sexual impropriety reported in U.S. prisons and jails last year was perpetrated by correctional staff, not inmates. . . . Female staff were the offenders in two-thirds of the prison cases, and two-thirds of the victims of prison staff were male inmates, according to the U.S. Bureau of Justice Statistics. . . . With 2 million men and 200,000 women behind bars in the United States, the problem appears small -- there were 344 substantiated incidents of staff sexual misconduct and harassment reported by authorities last year. But experts believe incidents are underreported, and the bureau study notes that many allegations remain under investigation.

Critics say just one improper relationship between staff and an inmate erodes discipline, security and morale in institutions where there is little privacy, few secrets and a strong reluctance to "snitch." . . . The few offenders also tar the reputation of all officers, undermining their authority.

THE PROBLEM . . . In addition to being illegal, sexual relations between prison staff and inmates can create an environment that erodes discipline, security and morale, corrections experts say.

THE SOLUTIONS . . . Experts say prison administrators should work to break the code of silence -- among inmates and prison staff -- that limits the reporting of sexual activity. Strong punishment should be imposed on offenders to embolden others to report sexual misconduct. Staff and inmates should be given better training about what is and is not appropriate behavior. While prisons staffed only with officers of the same sex are unlikely under U.S. laws, gender-specific posts should be adopted, especially where officers can see inmates in the nude. Virginia is working to maintain and improve the prison environment by reviewing policies and practices, adding cameras, reducing blind spots, assessing the adequacy of staffing and increasing monitoring, Corrections Department spokesman Larry Traylor said.


Former inmate files lawsuit after fall

9-9-06 -- A former inmate -- who stands four feet and one inch tall -- has filed a federal lawsuit claiming that he injured himself after falling from a sink in his prison cell. . . . State prison records show that Byron Rhodan has spent about 20 months in prison for dealing marijuana and possessing methamphetamine. . . . The lawsuit filed against the state Department of Corrections claims that in April 2004 a guard at the state prison in Jackson told Rhodan to shave. Rhodan says he told the guard he could NOT reach the mirror above the sink in his cell and that the guard told him to stand on the sink. . . . The lawsuit says Rhodan fell off the sink onto the cement floor in his cell.


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August 2006


Doing hard time

As Legislature mulls prison reforms, the larger question – whether putting more people in jail reduces crime – goes begging

Alan Bock, Sr. editorial writer, The Orange County Register

8-20-06 -- Two years ago, confronted by a prison system that had clearly become dysfunctional, Gov. Schwarzenegger declared himself a prison reformer, vowing a new emphasis on rehabilitation and a thoroughgoing program of "blowing up the boxes." In February 2004 a 40-member independent panel headed by former Gov. George Deukmejian issued a report with over 200 recommendations to overhaul the system. It focused on a "code of silence" that protects abusive guards and other prison workers and decried the undue influence of the California Correctional Peace Officers Association, the prison guards union. . . . Since then a federal judge, citing extreme problems in medical care for prisoners, has actually taken over operation of medical care in California prisons and appointed a special master to run the system and impose reforms. The special master, Robert Sillen, has issued several scathing reports, and a state controller's audit this month confirmed massive wasteful spending and abuse in the prison health care system. . . . This month the reform agenda, in the shape of a special session on prison reform called by the governor, has been reduced to the lowest common denominator.


Judge keeps prison control

By Joan Barron, Star-Tribune capital bureau

8-14-06 -- U.S. District Judge Clarence Brimmer has refused to terminate his supervision of an improvement plan for the Wyoming State Penitentiary because of what he described as ongoing violations of inmates' constitutional rights to reasonable protection. . . . "The court would be shirking its moral and constitutional duty to the inmates incarcerated at the penitentiary to find otherwise," Brimmer wrote in an opinion issued this week. . . . Although he continued supervision over the Wyoming Department of Corrections and the Rawlins prison for at least another year, Brimmer modified the prison reform plan by terminating some parts, including staff discipline, which he found to be satisfactory. . . . The 2003 prison improvement plan is the result of a class-action lawsuit filed by the American Civil Liberties Union on behalf of inmate Brad Skinner against Department of Corrections officials for failing to protect the inmates from assault by other inmates. . . . The lawsuit said prison officials failed to protect Skinner, who was beaten in 1999 by other inmates who thought he was an informant. . . . In his new order, Brimmer gave credit to corrections officials for significant improvements at the prison for men. . . . Since 2003, the department's new investigative unit investigated 153 potential inmate assaults and filed 159 disciplinary actions against 125 different employees, he noted in his order. . . . But Brimmer cited two cases that demonstrate the failure of the department's system to document conflicts between inmates and to prevent them being housed near one another. This failure, he wrote, is a violation of the inmates' rights under the Eighth Amendment to the U.S. Constitution.


Who Are We to Judge?
By Jane Dorotik
8-10-06 -- I choose to define myself by my spiritual leanings, by my intentions, not by my surroundings. I am a psychiatric nurse by education. I have worked all my life in the health care field, the last twenty years in a leadership senior executive capacity for mental health organizations. I am a mother, a wife, an optimist, a nonconformist, and an animal lover. But now my surroundings threaten to swallow me up, engulf me in a sea of despair.  . . . Six years ago my life was blown apart in a hurricane of events that I am just now beginning to put into some kind of perspective. My husband was brutally murdered by an unknown assailant while he was out jogging. Four days later, I was arrested and charged with killing my own husband – the man I loved and lived with for over thirty years, the father of our children. . . . Through an ego driven trial lawyer, a seriously flawed defense strategy, and a sequence of judicial rulings that allowed the jury to hear less than half of the actual evidence, I am now serving a 25 years to life sentence at Chowchilla prison. Even to write the words "25 years to life" is unreal and chilling. It all still seems like a terrible nightmare, except that the nightmare is the daily existence that I wake up to. My sleeping hours, my dream world is much safer… a kinder reality. . . . But I want to tell you much more than the story of the injustice done to me, for the story is much bigger than my plight. It is a story about society's prevailing need to find fault, to place blame somewhere, anywhere. It is a story about our inability to recognize the wisdom of rehabilitation as a viable consideration for troubled souls. The U.S. now incarcerates more than 2,000,000 of its citizens. In total 6.7 million people are in jail, in prison, or on parole: 3.1% of all U.S. adults, or 1 in 32! And the number of women in prison is growing at a rate faster than any other group in the U.S. Almost 1,300,000 are incarcerated for non-violent offenses. What are we doing here? As a mental health care giver, I am horrified at the sheer numbers of women who should be in a treatment setting instead of a prison. It is a story I knew nothing about until I was sent here.


As Dostoyevsky wrote, "The degree of civilization a society exhibits is best determined by how it treats its prisoners."
Written by: Jane Dorotik W90870 CCWF 506-26-3L, P.O. Box 1508, Chowchilla, CA 93610- 1508


Cheaper prison options sought

As number of older prisoners rises, so do costs for care

By Bob Purvis

8-7-06 -- Juan Rivera's hair went gray long ago. He has dentures but seldom wears them because they hurt his gums. . . . At 89, he struggles at times to remember and tends to repeat a story he told you just minutes before. His wrinkled face has become nondescript with time. . . . But state prison officials recognize his face all too well. Rivera, a repeat child sex offender, is the oldest inmate in the Wisconsin prison system, where faces like his are becoming more common every year. . . . The high price of a graying prison population has corrections officials and crime experts looking for ways to cut costs. One idea: placing geriatric prisoners deemed to be low risk in residential nursing homes or on house arrest. . . . In 1995, the state Department of Corrections had 165 prisoners older than 60. Last year, that number nearly tripled, to 492. The average prisoner age rose in that time from 31 to 35. . . . As the prison population has aged, the cost of caring for inmates has grown tremendously. Overall health costs for adult prisoners more than tripled over seven years, from $28.5 million in 1998 to $87.6 million in 2005, according to the Department of Corrections. The prison population went up 25% in the same period, to 21,763.

July 2006

Prisoners and Human Rights


The United States has the worst record in the free world when it comes to stripping convicted felons of the right to vote. In contrast, most European countries hold that right so dear that they bring ballot boxes into prisons. . . . This point was underscored last week in a scalding report from the United Nations Human Rights Committee, which held hearings earlier this month to determine how well the United States was complying with the International Covenant on Civil and Political Rights, which this country ratified in 1992. The hearings heard testimony about secret detentions, kidnappings and accusations of torture. . . . But they also dealt with how the United States treats its prison inmates, particularly the disenfranchisement laws that bar more than five million convicted felons from the polls. The American representative weakly defended the practice’s legality, but dodged explaining its rationale, saying the rules come from the states, not the federal government.

Prison sexual violence often unreported for fear of reprisal: DOJ
Jaime Jansen

[JURIST] Sexual violence in US prisons, perpetrated by both inmates and prison staff, often goes unreported [DOJ press release] because abused inmates fear a reprisal or do not trust prison staff, according to a US Department of Justice report [text, PDF; summary] released Sunday. The Justice Department's Bureau of Justice Statistics (BJS) [official website] examined reports to prison administrations comprising 78 percent of the adult prison population in 2005, finding over 6,000 allegations of sexual violence at a rate of 2.8 acts per 1,000 inmates, up from 2.5 acts in a 2004 survey [text, PDF; summary].


At the End of its Term, The Supreme Court Denies Mentally Ill Defendants' Right to a Fair Trial

By Sherry F. Colb

7-17-06 -- Two weeks ago, the U.S. Supreme Court, in Clark v. Arizona, upheld Arizona's insanity defense and affirmed a trial judge's refusal to consider expert testimony about the defendant's mental illness to rebut prosecution evidence of intent. The decision moved in the direction of depriving mentally ill people of an equal right to defend themselves against criminal charges. . . . In the case before the Court, Eric Michael Clark had been convicted of killing Jeffrey Moritz, a police officer. At his trial, Clark did not dispute that he had shot Moritz to death but claimed that he did not know - as the Arizona statute required - that Moritz was a police officer. He also claimed insanity, which Arizona defines as the inability to understand that one's actions are wrong. . . . In the service of these two defenses, Clark offered psychiatric expert testimony and the observations of lay witnesses. The trial judge in the case played the roles of both judge and jury, because Clark had waived his right to a jury trial. The judge decided that he would consider the psychiatric testimony only on the question of insanity, but not on the second question of whether Clark had the knowledge or intent to kill a police officer required for him to be guilty of first-degree murder in Arizona.


Haunted by raw deal, he tries to stir outrage

By Greg Hamilton

7-17-06 -- When the national media circus covering the John Couey trial comes to town in the next few days, one man will be standing on the sidelines trying to catch the attention of a reporter, preferably one of the TV big shots. . . . It is part of Ron Lundberg's tireless mission to win justice and freedom for a young man he believes has been railroaded by the legal system. A young man serving hard time for a minor crime. A man Lundberg has never even met. . . . The case that holds such a grip on Lundberg's soul should be a familiar one to Citrus County: Adam Bollenback, then 17 years old, sent to prison in 2002 for 10 years for stealing a six-pack of beer from a neighbor's garage refrigerator. . . . Like many people in the county, Lundberg was outraged by the sentence that Circuit Judge Ric Howard passed on Bollenback. He was especially incensed by the judge telling the teen that "This sentence is going to break your spirit right now" - unnecessarily harsh words for a defendant dealing with mental problems.


An odd way to build trust


7-17-06 -- If the General Assembly really wants to restore public confidence in the reliability and honesty of the criminal court system, it should let the public watch the wheels turn. . . . The public couldn't, under a proposed law bill that would build machinery to free the wrongly convicted. . . . That would scrap the historic presumption that the operations of our courts should be open to public scrutiny. Otherwise, how can the public know whether its police, prosecutors and judges are doing their jobs properly? How can the public know whether innocent people are being railroaded? Or whether guilty people are being given sweetheart deals to rat on their buddies?

July 10, 2006


Crazy Law

The Supreme Court beats up on the insanity defense.

By Emily Bazelon

7-10-06 -- The psychiatrists who testified in the case of Eric Clark agreed that he was a paranoid schizophrenic, and actively psychotic, when he shot and killed a police officer in Flagstaff, Ariz. Clark had previously been hospitalized for his mental illness. After his release, he retreated to one room in his house, rigged up a fishing line with beads and wind chimes to warn of intruders, and said that aliens were trying to capture and kill him. In the two days before the shooting, which took place in 2000 when he was 17, his parents frantically—and fruitlessly—called mental-health facilities and a lawyer in an effort to get him recommitted. . . . Yet the Arizona courts found that Clark "intentionally or knowingly" killed a police officer, convicted him of first-degree murder, and sentenced him to 25 years to life. Last week, the Supreme Court affirmed his conviction. The justices rejected the argument that Clark's right to a fair trial was violated because he wasn't allowed to offer evidence of his mental illness to counter the state's claim that he had killed the officer knowingly and on purpose.


A Broken System

7-10-06 -- The verdict is in. . . . The criminal justice system is broken. . . . There is a total breakdown in the honor and integrity of government. . . . It's hard to have respect, confidence and faith in a system in which its players and supposed leaders are more corrupt than the people who have been criminally charged. Lies and false prosecutions permeate the system. The system is built on the credo of one lies and the other swears to it. No, not the defendants. The judges, lawyers and police officers are focused not on seeking truth and justice but rather the almighty conviction and case closure. . . . And they think they're above the law. . . . Judges are being found guilty of masturbating on the bench during murder trials. A judge who has been guilty of using his court computer to surf porn sites instead of researching the law and faced charges of sexual harassment of attorneys is not only allowed to remain on the bench until the end of his term but has actually been promoted by the chief administrative judge to review civil appeals. . . . There's something grossly wrong with this picture. The public perception is that Pinellas' Chief Judge David Demers, infamous for his role in the Terri Schiavo case, has rewarded Florida's Sixth Judicial Circuit Court Judge Brandt Downey by giving him a new appointment to an appeals panel after the Florida Supreme Court has sanctioned him.



June 2006


Atlanta Attorney Fights for Prisoners' Rights

New movie looks at how the Southern Center for Human Rights tries to save lives

Meredith Hobbs, Fulton County Daily Report

  Southern Center for Human Rights' Stephen B. Bright

6-12-06 -- "Fighting for Life in the Death Belt," a movie that was scheduled to premiere in Atlanta on Friday night, is an inside look at the efforts of Stephen B. Bright and other lawyers at the Southern Center for Human Rights to save the lives of two clients on death row. . . . Bright ran the public interest law firm for 23 years until staff attorney Lisa L. Kung took over as director in January to free him up for full-time lawyering and part-time teaching. . . . A lot of people think he's left the prison rights group entirely, he said over pancakes, scrambled eggs and a continually refilled cup of coffee at the Landmark Diner in Fairlie-Poplar, a block from the Southern Center's office in Atlanta. . . . "Everybody thinks I've retired -- like I'm in a rocking chair or something," he said in disbelief. At 57, he still looks boyish and energetic. . . . Bright now is the Southern Center's president and senior counsel. He said he wanted to be just a staff attorney -- but the board made him take a title. "I like senior counsel," he said enthusiastically, "but not president. That was a board thing."

May 2006

Yale divests from private prison company

5-21-06 -- Yale University has divested from a private prison company, prompting students who opposed the firm's treatment of prisoners to declare victory. . . . Farallon Capital Management, an investment firm working for Yale, began the sell-off of Corrections Corporation of America stock in the past 12 months and completed the sell-off in the last six months, according to the Securities and Exchange Commission. . . . At one point, Yale had about $1.5 million invested in CCA, the New Haven Register reported. . . . "This is a major victory for the values of higher education," said Yale student Sarah Haley, who wrote a report critical of CCA, which has been cited by Amnesty International for its treatment of prisoners. . . . She said the company's lobbying for tougher sentencing of inmates is a policy that encourages construction of more prisons and that could mean more business for the company. . . . Yale University President Richard Levin defended the investment. He said the use of private prisons by states was comparable to the outsourcing of other governmental services. . . . The university's investment advisory committee also said the investment did not reach its benchmark of imposing "irreparable harm," but the students feel the standards are too subjective. . . . A spokesman with the Farallon, the investment company, said it does not comment on its investments, except that profit taking is dictated by the market.

The Landmark Case

By Carrie Hutchens Guest Column published in the Dakota Voice -- 4/25/06

5-8-06 -- Roe vs. Wade is a landmark case that is held up (as example) and up-held. It is an example of our judicial system and an attitude that is as flawed as the case itself. Yes, flawed.

It doesn't matter that the very person represented has come forward and stated all was not as presented. The court "found", so new information is a non-issue. Truth matters not once a court has made its decision and time element met.? Decision made -- it is the rule of law and then simply "is"?

Have you ever considered this statement -- "He is guilty because the jury found him so?"

A jury finding a person guilty does NOT automatically make the person "actually" guilty of the action. It merely says that the evidence (and/or performance of the attorney) makes "it appear" that the person is most likely so. That's all it does. And point here being... there should NEVER be a time limit on evidence being "presented/accepted" that proves one is innocent.

There are those that would say... well then... we shouldn't have a deadline on the suggesting guilt (statute of limitations). However, there is a difference. Big one. Huge one.

If someone were to say that on a certain date, even one year ago, that you drove through a stop light (especially in an area you normally drive within) -- could you "readily prove" you did not?

On the other hand...

What if you were found guilty of the accusation of driving through that light and "one" single day too late -- the witness and/or evidence was found that could prove otherwise? Testimony/evidence that could not then be used in your behalf?

That "ain't" -- nor shall it ever be -- Justice!

Justice! That thing the courts are suppose to represent and doors be open to!

And what if a court puts an innocent to death? Who pays? The court? Or the innocent now dead?

Oooops! But the court in the court's opinion is right because the court found this person to be guilty by the evidence presented and therefore it really doesn't matter what the truth is -- only what the court found to be the truth and it is the accused's fault for not having the best actor attorney and all the evidence/witnesses readily available upon demand? Yep, that's what it be. That is what it be, until we bring our system back into focus and into the direction it was meant to be headed.

Judges are not all-knowing gods! Their decisions should not be viewed as absolutes and to heck with proof and truth and things called right and justice. If truth proves a judge to be wrong -- that should be all it takes to let an innocent be freed of unfair judgment and sentence. No innocent should ever pay the price of the evidence/proof just coming too late for any court or any judge to consider.

Roe vs. Wade? It's a landmark case and lot's of decisions have been made due to it and based on it. Since it appears to be flawed, what about all those cases that came thereafter? Too late to present the truth? Judges said -- so that is how it goes? Truth matters not? Life goes on and so does dead?

Maybe it is time not only to revise the landmark decision, but the very courts that made it so!

Carrie Hutchens is a former law enforcement officer and a freelance writer who is active in fighting against the death culture movement and the injustices within the judicial and law enforcement systems.

Other work by Carrie Hutchens: Media Contradicts Media Contradicting Media


A real outrage: Texas justice

By Lee Russ, Section Ranting 4/24/06
5-8-06 -- This Sunday's Denton, Texas Record Chronicle published a description of the kind of miscarriage of justice that used to boil enough public blood for changes to quickly ensue. . . . When Tyrone Brown was 17, he was part of a robbery which netted the robbers $2, and involved no physical injuries.  After pleading guilty to aggravated robbery, Brown was put on 10 years of probation.  While on probation he got caught having smoked marijuana one time. Dallas judge Keith Dean revoked Brown's probation and sentenced him to life in prison.  It's been 16 years, and several self-described suicide attempts later, and Brown still sits in prison. . . . John Alexander "Alex" Wood pleaded guilty to murder for shooting an unarmed prostitute in the back.  He also got 10 years of probation.  While on probation, Wood, described as "well connected," repeatedly failed drug tests, and was arrested for cocaine possession while driving a congressman's car.  That arrest was not prosecuted, and neither the arrest nor the failed drug tests were deemed sufficient by Judge Dean to warrant revoking Wood's probation. . . . In fact, last year Judge Dean lifted most of the usual conditions of probation from Wood. Wood no longer has to submit to drug tests, refrain from owning a gun, or even meet with a probation officer; all he has to do now is obey the law and mail the court a postcard once a year that gives his current address.


Justice's Double Standard: Revisit young robber's life sentence

5-8-06 -- There's something deeply wrong about a jaw-dropping sentencing disparity from state District Judge Keith Dean – the one summed up in this newspaper's Sunday headline "The robber gets life; the killer remains free." . . . Here's a stab at an explanation: Judge Dean was freaked out, along with everyone else, by the spike in violent crime in the early 1990s and did his part to make the streets safer. It was a time when Congress federalized the crime of carjacking and jacked up penalties for crack cocaine. . . . Thus did 17-year-old Tyrone Brown get a life sentence for a $2 holdup after he failed a drug test by smoking marijuana, whereupon Judge Dean revoked his probation – for good. And so young Mr. Brown joined the 1990s boom that tripled Texas' prison population. . . . As for the other half of the disparity – the confessed murderer who's free on probation despite repeated failed drug tests and other legal jams – his good fortune appears courtesy of creative lawyering. Prosecutors bought a plea deal for defendant John Alexander Wood, and the judge has inexplicably tolerated his many indiscretions. Plus, it certainly couldn't hurt that Mr. Wood has a brother-in-law congressman and that the pastor of Dallas' First Baptist Church testified for his character.





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