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Saturday, November 16, 2013

Dateline: Ryan Ferguson "The Wrong Man"

Ryan Ferguson "The Wrong Man" Video

We all know that these investigators and prosecutors acted unethically, withheld and obviously fabricated evidence against Ryan. What of their accountability? What seems to trouble me more are the courts that merely shuffled his life altering paperwork through the stages of denial, without a blink of an eye or an ounce of consideration?

From the "FreeRyanFerguson.com" website I quote: In early March, Missouri attorney general Chris Koster responded to Ryan’s Habeas petition and urged the Western District Court of Appeals to deny the petition. Later in the month Ryan’s attorney Kathleen Zellner filed a statement rebutting the State’s request. Koster has argued that another hearing for Ryan is a ‘waste of judicial resources’. Zellner’s reply, “What possible expenditure of judicial resources could be more justifiable than rectifying a wrongful conviction?”

I wonder just how they now respond to that "waste of judicial resources" knowing that they denied an innocent young man 10 years of his life? I suppose the standard answer is: "The system is not perfect and some collateral damage can be expected." When the system is allowed to conduct itself in this manner, it doesn't create just one victim in it's path; it destroys many.

And God Bless Ryan’s pro bono attorney Kathleen Zellner. Her tenacity and resources saved his life. She spent nearly a million dollars to free an innocent man. She spent that because it required that to have a chance to right a wrong. What chance does an ordinary person have fight a wrongful conviction against a system that will defend itself, even when it knows it's wrong? They can break our banks. They can break our hearts. But I'll be damned they will ever break our fighting spirit!

Friday, November 15, 2013

The Anatomy of a Plea Deal: A Gift or Affordable Relief?


I have always understood the process of plea-bargaining to be something that only a guilty person would ever consider. It’s an obvious conclusion drawn simply by the term “bargain or deal”. Let’s face it; if you are guilty and you know it, and there is evidence against you, any deal is better than what you may face at a jury trial. Not only is going to trial bogging down the courts schedule, inconveniencing potential witnesses, and is an huge cost to the tax payers, but there is always an element of risk to the prosecutor that they just may not win their case. The strategy of stacking on the charges in an indictment gives them a better chance that something will stick and with a win, put the defendant away for a much longer period of time. But the “charge stacking” also provides the “bargaining materials” for the basis of the plea bargain. Peeling away at those stacked charges makes the plea attractive, reduces time served and becomes very convincing that the guilty should avoid the risk of trial at all costs!

So why would an innocent person ever accept such a deal; let alone even consider it? We know that this does and still happens in courts throughout this country. The plea deal is a tool of the trade. This may hold to be more evident in cases where no evidence exists or are more circumstantial in basis in which the risks of a prosecutorial win is less than favorable. Again, stacking the charges increases the charge level, increases potential sentencing terms and increases the defenses risks at trial for their client. Again, in spite of all the odds, why would any innocent person ever agree to concede and forego their right to a trial by a jury of their peers? It doesn’t make sense does it? It didn’t make sense to me and it doesn’t make sense to jurors either.

Here in lies the problem with a circumstantial case, or a case that has no physical evidence, no eyewitnesses; nothing. The issue becomes the prosecutor’s use of theories and assumptions as to why the defendant is guilty. The defendant’s only ace in the hole, presumably, is their presumption of innocence. But from a juror’s perspective, who in the courtroom holds more presumed credibility; the prosecution or the defendant? The most powerful presumption in that courtroom is that the truth will be seen and heard and the jurors will get it right. But which version of the truth becomes more compelling and believable is the real dilemma at hand. So a good defense is going to weigh out and explain all these complicated dynamics to their client so they can make a rational decision about an irrational process. Not an easy proposition by any stretch of the human imagination. After all, the first question in any juror’s mind will be; “why would an innocent person be in this courtroom in the first place if they weren’t guilty of something wrong?” Good question, but it also becomes the first assumption of guilt before the process starts.

So take a moment and ponder this scenario for a moment. As a reader or an outside party, you have nothing to gain or lose by examining this process. You have been falsely accused of a crime; there is no evidence against you because you are truly innocent. Circumstances may give the appearance of guilt, but again you are innocent, so of course the truth will set you free. The prosecution’s only strength is their theory and circumstances posed in the form of an indictment. Perhaps in a case that doesn’t involve murder, there are witnesses willing to testify against you; not as eyewitnesses but simply their word against yours that you are capable of guilt for the crime. This scenario is real and happens many times in sex related crimes and in some cases, even murder. The prosecution comes to the table with a plea deal. What do you do? What is your first response to the notion they want to make a deal? Do you consider it or outright reject it? What are the risks of either action? Taking it admits guilt. Turning it down and going to trial is risky because in all reality it comes down to whom gives the best accounting of their version of truth. What if you lose? What do you risk at sentencing? Can you appeal? Not such a simple task remaining innocent while others are being convinced you are not. It’s your life, what do you choose to do?

For just a moment, let’s consider that plea deal. Yes, we understand your innocence, but it’s counsel’s responsibility to explain all sides of this not-so-simple process. First, taking the plea is an admission of guilt; period. Guilt is forever in the eyes of the court and in the minds of society. After all, who in their right mind admits to something that they didn’t do? Research the Innocence Project and ask yourself that question again. Next, by accepting that plea, in most jurisdictions, you as part of the plea, waive your right to an appeal. That’s right, you cannot use the judicial process to right your false plea of guilt. So relief is no longer an appeal away. Now there is that punishment portion of the plea, the reduction in sentencing or time to be served. The plea may entail a reduction of a potential of 20 years based on all the charges in the indictment, but the plea may reduce it to 5-8 years; a big difference. But here’s the problem; you’re innocent, right? How can this be right? This isn’t justice. So what do you do? Accept and admit guilt or take your chances at trial? I understand, there is just no way that 12 people will not see your innocence and that the truth will reveal itself and this nightmare will be over...think again. Oh something else to think about here, once they ship you off to prison, no matter how innocent you may be, the prison system only sees one thing…an inmate. You are issued an inmate number; a cell and your life will be forever changed from that day forward.

Okay lets go to trial and win, right? Sure there are always the chances that your attorney can raise all the valid arguments to your actual innocence.  They will dispute any timeline allegations and uphold your alibi, if you can produce one. They will argue every constitutional violation known to man and will tell the jurors that the law requires a presumption of innocence and that any reasonable doubt in their minds protects the defendant from wrongful prosecution. But how do you fight against the bias and prejudice presented by the prosecution? After all, they have nothing but that to work in their favor right? You sit there as an innocent defendant hearing these lies being told and your attorney objecting; but what is being set in those juror’s minds? Nobody knows until the verdict is read.  If they acquit, you’re  free right? After all, depending on the charge, your name has already been smeared, your reputation dragged through the mud. Some will even believe that you are still guilty, but got off on a technicality or simply got away with it. Will you get an apology from the prosecutor who got it wrong or the investigators who swear against your innocence? Will life as an innocent person really ever be the same? But lets say you lose and you get convicted. Your lawyer will object to the verdict and file for an appeal. Of course if you are broke to begin with, an appellate attorney will be appointed for you. And perhaps you spent all the money you could afford on your defense attorney and you’re broke now, they will still appoint one for you. Meanwhile, you are sentenced and sent off to prison. You go to prison as punishment, but quickly find out that it is for more punishment. A year passes while you wait for your appeal. Your appellate attorney will ask to be heard, and if granted, gets a whole ten minutes to plead your case. As soon as it starts, it seems its over. Then its that waiting time again. Chances are good that it will be denied, but the hope of something positive still looms in your mind because after all, although convicted by a jury, you’re still innocent you see. So if it’s denied, you appeal the appeal at the next level of court. Your state appointed appellate attorney is still at your side, so to speak, because they never really ever meet you. Another brief and another request to argue; and then you wait again, perhaps another year goes by. Meanwhile you’ve been down 3 years or so, your family continues to fight and pray. They hopefully send you money for commissary and prepay the phone so you can call home to stay in touch with some form of reality. They try to visit and sit and talk. They try everything in their power to give you hope that justice does exist, while the reality of life in prison removes that hope of a life that is ever normal again. So chances again are that this court will uphold the last and you are denied again. So what’s next? Oh yeah, the clock begins to tick again. Your state appointed attorney is done and gone. You have two choices now, hire another attorney or go pro se; in other words, on your own. Your options to proceed are to file a corum nobis which is ineffective appellate counsel; a 440 motion which goes back to your trial court and bring in new evidence, if any; fight prosecutorial misconduct, ineffective assistance of counsel and any other trial errors that there may be case law to support. Then your last resort, after all others are exhausted, is the federal habeas. Generally you have a year to file something, but how and by whom? You only got a couple good chances left to fight for your innocence and freedom. Going pro se is risky, but is done by inmates all the time because that is all that they can afford to do. But what’s the cost for an attorney to assist you? A Corum Nobis can cost up to $10k, if you have enough to argue on. A 440 can be up to $50k plus for an aggressive lawyer that will fight the trial court. And if you can get to the Federal Habeas, what do you or your loved ones have left to pay out for yet another attempt at justice? My point is, although you have a right to an appeal, can most ever afford to have one, let alone a good one? Sure there can be success, but truly its not very often. The system is not so ready to undo what it has done, especially when it comes to admitting to the errors of its actions. Keeping you tucked away in a for-profit prison system better serves society than your quest to prove your innocence. Nonetheless, you will fight, you will file what you can and with all likelihood you will lose because the system is designed to work that way.

So as we analyze the process and the results we have come to understand; we must truly ask ourselves what the difference between a plea and exercising your right to a trial? The right to a trial is simply a gamble, not a guarantee. The fair play rules are not so fair. The interest in truth is secondary to winning their case. There is just too much politics and power on the line here. Exercise that right and lose, well you can expect the maximum, after all, you turned down the deal. But where do you stand in the end? Is there really any difference at the end when all the dust and drama goes away? If you plea, and serve a short term, you’re out as a guilty person and faced with a society that sees you as a criminal and a felon. Serve your maximum sentence of 20 years, because in order to get paroled early, you must admit your guilt and feel remorse. How can that be possible for someone that is innocent? So you go the max and get out as a criminal and a felon. Your innocence has long disappeared and maybe your family, your parents and grandparents are gone too. So what do you have and what did you gain? In my mind, innocence is moot at this point because nobody really cares. You’re guilty forever in either case, other than you were not stuck in a cell away from your family if you had taken the plea. The real difference lies within the heart, sole and dignity of an innocent person. Although the outcome appears to be the same; living with a false admission of guilt may be more than you are willing to pay.

Tuesday, October 22, 2013

Some of my recent thoughts and opinions...

Over the past months, I have been reading and commenting on various subjects. Here are some of my thoughts I'd thought I'd share.


Subject: DHS/FBI considers anyone with a large amount of guns or ammo to be a possible terrorist.

Comment: I think that is has become more about lowering the standard to fit the agenda or the profile the government s trying to enforce. Instead of just identifying the direct known threats and legitimate activities against us or others, they have resorted to broad based profiling which opens a can of worms. Gun control through a moving definition of terrorism is one way to widen their reach. Just as talk of lowering the BAC level for DUI from .08 to .05, simply opens the ability to enforce the law to a wider demographic of potential offenders. Having a glass of wine could make some "legally" impaired. Does lowering the standard protect more people or does it open the availability for government to profit from a wider group of potential criminals? As a legal gun owner and as a former law enforcer, I respect the constitution and the sanctity of freedom. If I should choose to legally possess more firearms than the government chooses to determine is too many, then am I to be reclassified from a law abiding American citizen to a potential threat against my country under their broadened profile? The government even went so far as to approach the bullet manufactures about making primers that expire or have a shelf life. Imagine the liabilities that could extend from that proposal. What we have to worry about is when we refuse to drink the "Kool Aid" the government is serving us and we decide to step off their path, we may fit their profile. The Patriot Act and the PATRIOT Sunsets Extension Act of 2011 only provide power to enforce and little to protect our rights as law abiding citizens. 

Subject: Juveniles are more likely than adults to confess to crimes they didn't commit, prompting courts, legislators and police to grapple with how interrogations of them should be conducted.

Comment: It always makes me wonder why investigators spend so much effort in getting a confession rather than doing a better job investigating, and finding the evidence that ultimately eliminates them as suspects in the first place. By all means, all major crime interviews should be recorded. With today's technology, they can pull out their smartphone quicker than a notepad and pen. Besides it's much more precise and accurate to what was actually said. But when it comes to recorded interviews, that permanent record can take away the presumed credibility of the officer's word and recollection when filling in the gray areas needed to solve a case. Our former DA had an unwritten policy to all investigators to "never record anything". Why? So there would never be "evidence" of their actions and they could will in their own blanks. They even pulled all the dash cams from the patrol cars for the very same reason. If the truth is the ultimate justice; then why fear it's discovery? 


Comment: The problem with our justice system is that we have a very lucrative "Create-A-Felon" program in this country backed by a very profitable prison system. These prosecutors are more politician than the justice seekers they promised to be. One sure way to make them do their jobs properly, is to hold them accountable. Just as we hold surgeons who perform "life altering" operations accountable through very expensive "malpractice insurance", so should we expect the same for the prosecutor that holds freedom and liberty in the palm of their hand. They would take far less over reaching risks and stick with true and sound evidence if they knew there would be consequences to improper actions. After all, isn't it accountability for our actions that keeps most people walking the path of doing what's right? Then you must do away with Grand Jury. Again, they have an indictment rate of nearly 97%, according to statistics. Any group that is that efficient with only one side of the story (the state's) has to be considered prejudiced and bias. We also have to do away with mandatory minimums in sentencing. Our system is throwing away the key in more non-violent cases than ever. Why, again it's about filing beds (cells) and staying profitable, creating jobs and looking all so politically correct when it comes to re-election. The American prison system has nothing to do with rehabilitation. There is no evaluation process to determine what it takes to help bring someone back into society. After 5 years, for most inmates and not all of them, the process of hope for a life diminishes as they become institutionalized and become more hardened with time. And we all realize that all these felons will likely never get a job because society likes the whole "throw away the key" concept with any criminal. The result: no job, no means of self worth in society so back to prison they go. And when this happens, the politicians (prosecutors) will boast how you can't rehabilitate a criminal and they are best kept out of society. It has become a vicious circle, our justice system, and all you can do is hope it will change and pray you never get caught up in it because most people could never afford the fight.  

I truly see no difference between the responsibilities of the prosecutor and the surgeon. Both are trained and swear to uphold the ethics of their profession. Both can bear the responsibility of life and death, or worse, the lifetime crippling effect of their errors. I think the core difference is that the surgeon bears a conscious for a misfortune backed by the knowledge of bearing physical responsibility for any mishap that may occur. Therefore each surgery is planned and strategically performed for the proper outcome. And they will be the first to wholeheartedly advise against any unnecessary or risky procedure that could produce unfavorable results. A prosecutor, under our current dysfunctional system, doesn't really have to concern themselves with any of these important and ethical considerations. If their case looks too risky for trial, then scare the crap out of the defendant by letting them know if they do lose at trial they can "throw away the key" or take a plea, forgive your right to a appeal, and all you have to do is admit your guilt. The ability to prosecute and to win cases by any means and without the worry of accountability does not guarantee justice. Here's what you do the next time you need medical attention. Consider having your local prosecutor perform the procedure for you under their current code of ethics and see how confident you are that you will recover in the same condition as you would under the care of someone dedicated and accountable for their every act.  


Comment: Ken Anderson's shameful use of his power, authority and immunity should find him the same 25 year sentence he imposed on Michael Morton. His conviction should set precedence and case law to hold others accountable for similar acts. These prosecutors are pros at manipulation and cover-ups and have immunity to protect them. He stole Morton's life and freedom from him. It's time to pay the piper...in a real prison and not under protective custody...at least for a year or two. Then a clear message will be heard of the realities of intentionally destroying other people lives for the benefit of their own. 

Subject: Long Prison Term Is Less So Thanks to Judge’s Regrets

Comment: As there is no argument that we as a country incarcerate far more people than any other nation in the world. And under that overwhelming statistic, we wrongfully convict far too many that just get lost in this sea of convictions and political red tape. But there are also those that get sentenced, under mandatory minimum requirements, for non-violent crimes that end up costing the citizens of the country millions of dollars in housing costs and the families of these inmates, thousands of dollars of year supporting their loved ones behind bars.

When mandatory sentencing requires an incarceration period of 15-25 years under these types of crimes, there becomes a turning point during the incarceration period, that a new mindset must be adapted by the inmate to prepare for the long haul. As we know the first 3-4 years are generally spent fighting for appeals, 440's and writs of habeas corpus. Families spend thousand of dollars, if they have it, or inmates trying to represent themselves pro se in an attempt to find some relief in their long term bid. But after all that is exhausted, and it is exhausting, then the realization of the remainder of their long bid falls into a sense of reality. Not that they must give up hope, but that they must concede to the life they must live to finish out their time.

In my opinion, many, but not all, come to have learned many valuable lessons in that initial 3-5 year period. They understand how the system really works in its own favor and that the truth doesn't always equal justice. They come to understand the toll this process takes upon their families and come to understand that as time marches on, there becomes the sense of acceptance that "it is what it is" and everyone tries to live as normal a life as possible. And I also believe, at this point, if given that second chance, they'd never go down that road again. You know, a form of rehabilitation sets in and a more clearer vision of the consequences of bad decisions. But what happens past this point really depends on the strength and character of the inmate. Giving up and giving in does become an option they consider. Anger and resentment can replace the hope and optimism that kept them going. The vision of their life or what it holds at the end of their bid may not be a joyful as once believed. Family members pass away, children grow up and move on and all done without their control or input.

This is why I believe that for many, a sentence period in that 5-7 year range is the most beneficial for most non-violent offenders. There are other crimes that may fall into this consideration period and it may produce the best results for everyone involved. Sure there my be repeat offenders, and they would have to be dealt with accordingly, but I really feel that many would turn their lives around, build strong family ties and become good members in society. This could only be possible because they had a chance to prove themselves and get that second chance. I am not so sure that those that have spent half their lives in prison will come out and be able to be as good a part of society. First is their own self confidence and second, the unwillingness for society to give them a chance to prove their worthiness. 

I guess I should have better stated it as for non-violent crimes, like we are speaking about here that do end up as prison sentences, which I also agree that not all should, that giving a sentence "up to" 3, 5 or 7 years (max) still provides a level of rehabilitation because no matter the age of the inmate, there is still a light at the end of the tunnel for them. Going beyond that, changes them in not such a good way. As in Mindy's situation, what does 15 years accomplish toward anything? It only feeds the system and nothing else. The system sends the clear message that no matter what your offense, you are a piece of garbage, an animal and will be dealt with accordingly. This of course does nothing toward public safety, rehabilitation and hardly a shot toward ever having a normal life again.  


Comment: The numbers are so small because it takes years to complete the process. Although the system allows for an appeal process, time constraints and legal assistance diminish a chance for favorable results. Then the innocent person can only continue to seek the support or at least, the consideration of an organization such as the Innocence Project. Once, considered and accepted, it takes sometimes years to be heard or to obtain necessary testing needed to prove innocence. All the while, prosecutors and the courts fight against them to allow such proof to be discovered. And in many cases, even when the proof of innocence is clear; they still dispute it. Although hundreds have been exonerated, I believe thousands of truly innocent people sit in prison because they haven't the resources necessary to fight or the qualified assistance to at least be heard. And of course in non-DNA cases, the battle is even more over-whelming and almost financially impossible to get the odds in their favor whatsoever.

The best battle fought is in the beginning, before a wrongful conviction can occur. Unfortunately in this complex world of twisted legal loopholes, the home team advantage usually lies with those that can afford the high cost of getting justice. There is a reason we convict and imprison more people than any other country in the world...that's because we're good at it!

Monday, April 15, 2013

The Impartial Juror. Is It Even Possible?

I sincerely wonder in this advanced age of social media, Internet and high visibility media if in fact, anyone asked to sit on a jury can truly remain impartial?

The standard instruction during trial proceedings are to not to speak, discuss, visit any locations mentioned in the case, not to read any articles, Google any articles and watch or read any media concerning the case. Is that really something that we can truly expect to be upheld outside the confines of a courtroom? I mean in today's age, some can't visit the restroom without updating their Facebook or Twitter accounts!

The expectation of a fair and unbiased jury of your peers is largely based in trust and integrity. I'm just not sure that twelve people can realistically uphold that necessary responsibility. What is truly bothersome in my mind is the continued formation of "legal opinion" by those who only know what they read and assume rather than from the facts that have yet to be revealed. I'm placing a lot of weight on human nature over the steadfast ability to remain truly impartial.

Any thoughts from both sides of the fence on this issue?

Sunday, December 9, 2012

A Land of Kings

I was thinking of times when Kings ruled the lands. How that royalty stood above their people, made decisions and levied tax and punishment in order to control peace and tranquility amongst the kingdom. I often wonder if this was such a great system that provided what was best for the people, why did people call it tyranny and fled to this country to escape it?

I have to think that tyranny is alive and well, here in America. Big government making laws, taxing the people in order to maintain peace and tranquility amongst its people. After all, they do know what is best for us and have placed like a gazillion laws on the books to ensure our safety and control.

But the Kings of the Land exist today in America. They are the judges that sit in high courts; a sort of high royalty that sit on thrones above and untouched by the people of the land. When a person is brought before the King, they must rise and fall upon his command, not speak unless spoken to and is subject to the decisions that are made in their behalf. Sounds kind of archaic doesn't it? Yet the same holds true in modern times, in courts throughout the land. Those whom enter in these courts as defendants and citizens alike, must rise and fall at the command of the court. I often wonder how ordinary men and women become such kings? Are they immortals that have vision and knowledge beyond the common man? Have they been granted such authority because they have the ability to isolate themselves from the compassion's and emotions of the mere mortal man? Why is it that in a free society that a king should be able to command such extraordinary treatment over any other person under a constitution of equality? For example, are we constitutionally bound to rise when a judge enters the court? What is the penalty if one does not? I can understand that someone brought before the court may be required to rise and fall upon command; but what about the common citizen there to observe or support? In a free society, are we not free in our actions as long as they do not inflict harm upon another?

The power of the Kings is unlimited and far reaching. They can make determinations whether or not to hear your case before them. They issue strict time constraints on matters that can come before them; even in disputes of the decisions they have made. They make it impossible for the ordinary person with limited resources and knowledge of the laws, to have the ability to navigate the complicated twists and turns of the law in an attempt to correct a wrong. It appears that these Kings have forgotten, that they too. were once a simple mortal man, who lived and breathed like the rest of us. That a simple constitution of the people protects them from big government and the tyranny of the Kings.

So the next time that you visit the courts, if you must, try to avoid the commands of the court as a free citizen. If you are punished, then you are not free to do so under the laws imposed by the court. But if you rise and fall under fear; then tyranny is still alive and well in the Land of Kings.