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Teenagers in Criminal Justice System’s Solitary Confinement not a Secret, Dark or Otherwise

Brian Williams of NBC’s Rock Center featured a disturbing “expose’ ” on Friday, Mar. 22, 2013,  regarding teenagers being isolated from adult inmates while in custody by placing them in solitary confinement.  This occurs when a juvenile is certified to stand trial as an adult. If the juvenile is unable to post bond,  (s)he remains in custody.  As such, (s)he must be kept from adult inmates. Consequently, solitary confinement.

The problem  juveniles pose in pretrial detention is not new. It is endemic when you mix juvenile and adult inmates. This  “problem”  is becoming more prevalent due to the proliferation of certifying juveniles to stand trial as adults. But isolating juveniles, even in juvenile institutions, has been commonplace for those who work in these facilities or had the misfortune of doing time as an inmate.

This is not simply my opinion; it is my experience as a juvenile who bounced from institution  to institution and as a criminal defense attorney for the past thirty-five  years.

From  13 years old  until  20, I was in and out of  lock-up facilities. Beginning in Woodview Detention Home, I was confined a week or more during each stay. Each confinement was in a small room  with a bed and toilet. The rooms were not cells; rather, they had metal doors. Interaction with others was severely limited. If I was not having a meal, I was confined to my room. The lack of interaction with others was stressful; it was meant to be.

I progressed to Boys Totem Town, confined a minimum of  seven  months each of the  three times I was there.  Although BTT did not have isolation rooms during my first two stays, if a juvenile was out of control he was returned to Woodview Detention Home and placed in a secure room, isolated from all  inmates.  During my last trip to BTT the institution had created an isolation room  segregated from the main part of the facility, two floors above where most inmates congregated.  After BTT I was next confined at  Lino Lakes Diagnostic and Reception Center for two months.  If you could not function in the main population, you were placed in isolation in B Building. Once I was “diagnosed” at Lino, I was transferred to Red Wing State Training School for Boys where I spent the next eight months,  the first forty-five  days in Brown lock-up cottage. My room only had a bed. No sink or toilet; no magazines or books. No conversation, no television.   It became a daily struggle to cope with the isolation. I was deteriorating emotionally, psychologically. Two years later I was sentenced to St. Cloud Reformatory for Men for five years. Upon admission  I was placed in B Hall,  a segregated unit where I could see inmates at the far end of the cell block as I peered out through the bars. There was no contact with inmates for the first six weeks.  Out of segregation for approximately thirty  days, I got  drugs, a needle and a fight with a couple of guards. I was confined in segregation for thirty days. The well-used isolation unit was on the top floor of the segregation unit in D Hall.

My experiences as a juvenile and adult inmate  occurred over forty  years ago.  Everybody in the juvenile  and  adult systems knew of the isolation units. There were inmates at Woodview and Red Wing that  I spent time with in isolation  who could not cope with the debilitating, psychological effects  of  confinement. They came out of isolation worse off, more unstable than they were before  isolation.

Segregation,  particularly for high-strung inmates,  is bad. It is one step removed from inmate contact. Isolation is two steps removed from inmate contact. That is, the inmate is segregated from other inmates in isolation.  No conversations.  You can’t even see other inmates.  The atmosphere is subdued; eerily quiet. You feel buried alive.

As an attorney for the past thirty-five  years, I have been aware of isolation units in different facilities. Minnesota’s  Oak Park Heights Prison comes to mind.  Before I became an attorney I was a paralegal representing inmates at disciplinary hearings at Stillwater Prison.  This program, the Legal Advocacy Project, grew out of a consent decree entered into by the Minnesota Department of Corrections after  United States District Court Judge Edward Devitt issued an order condemning the isolation unit in the back-end of C Hall as  cruel and inhumane.

Isolation is draconian when applied to  inmates; it is devastatingly cruel when applied to juveniles, regardless of the reason. There is no justification for it. And it is the height of ignorance to respond to arguments against isolation with the pithy cliche’ “Can’t do the time, don’t do the crime.”

These “corrections”   institutions correct virtually nothing. Isolation corrects nothing.  It is the inmate- not the institution- that corrects the  problem, be it chemical dependency,  lack of  job skills or education.   Teenagers in the criminal justice system’s solitary confinement is a deliberate, calculated  policy decision based on efficiency and indifference. It’s that simple.

Tainted Justice: West Memphis Three Freed From 18 Years in Prison Having Proved Their Innocence. Or Did They?

In 1993 Damien Echols, Jessie Misskelly and Jason Baldwin were convicted of first- degree murder in the gruesome, and allegedly satanic,  killings of Steven Branch, Christopher Byers and Michael Moore, three 8 year old cub scouts whose bodies were dumped in Robin Hood Hills. Steven Branch and Michael Moore drowned in 2 feet of water; Christopher Byers bled to death and his genitals were mutilated.

Subsequently,  the Arkansas Supreme Court upheld the convictions and sentences. Echols was on death row; Misskelly and Baldwin were serving life sentences.

On August 19, 2011, the three walked out of jail free and, as they contend, innocent. Innocent, after Baldwin and Echols pled guilty to three counts of first-degree murder and Misskelly pled guilty to one count of first-degree murder and two counts of second-degree murder.

How did the West Memphis Three end up back in court after their sentences were upheld only to have their convictions and sentences vacated and plead guilty, yet claim to be innocent?

As a criminal defense attorney in Minnesota for over 30 years, I have been in this situation. It is uncommon, but not rare. Undoubtedly, after the three had their convictions and sentences affirmed on appeal, they sought ” collateral review” of their cases. Collateral review is where the trial court reviews allegations of constitutional or statutory rights, as opposed to “direct review” where the appeals court reviews claims arising from the trial court.

Keep in mind that the trial courts are where trials are held. That is, prosecutors present evidence to the fact finder. The fact finder can be a judge (as in a court trial) or a jury in a jury trial. Once there is a conviction and a sentence has been imposed, then the defendant may appeal. On appeal, the appellate court does not take testimony or retry the case. The appellate court is an error-correcting court.

On appeal there are different standards of review the court applies. The purpose of these standards is to determine how much deference the appellate court gives to the trial court. In other words, if on appeal a defendant claims the trial court erred in admitting certain testimony, or evidence, the appellate court will apply the abuse of discretion standard. Why? Because the trial court heard the testimony and observed the demeanor of the witnesses. These observations are not in the record-and the appellate court does not take testimony on appeal.

Consequently, the trial court is vested with much discretion in admitting testimony. Therefore, the appellate court will require the complaining party on appeal about admission of evidence to establish the trial court abused its discretion in allowing the evidence.

If there were a collateral review, then the defendants created a record for review by the appellate court once their claims were denied. Apparently, the three claimed that certain errors occurred at trial. Baldwin and Echols claimed that the jury committed misconduct by accessing information about Misskelly’s confession that was not introduced in their trial.

All three alleged that their DNA was not present at the crime scene. On appeal, the Arkansas Supreme Court remanded the case to the trial court for  an evidentiary hearing to determine whether the jurors  committed  misconduct and to determine whether the absen of the defendants’ DNA  at the crime scene raised an issue of their innocence.

It is obvious that the attorneys and the judge met before the hearing to  discuss the purpose of the hearing and what each side intended to prove. Based on these discussions it became apparent to all parties that both sides wanted to avoid a new trial and, potentially, either total vindication or a verdict neither side could accept.

This is how the pleas were crafted. Welcome to North Carolina vs. Alford, a 1970 United States Supreme Court decision that permits a defendant to plead guilty to take advantage of a plea offer while claiming to be innocent. I usually utilize this plea procedure where the evidence is substantial, the defendant doesn’t recall what happened and doesn’t want to go to trial.

The critical language in an Alford plea is that the defendant admit that the prosecution has such evidence that there is a substantial liklihood that if a jury were to hear this evidence, they would convict. But the plea also allows the defendant the right to proclaim he is innocent.

This is what Echols, Misskelly and Baldwin did. They technically admitted they were guilty so the judge could impose a sentence, but then said they are innocent. This plea arrangement allows the prosecution to close this case with convictions. It also allows the defendants to hold their heads high while professing their innocence. But it  deprives the defendants from suing the state for wrongful conviction or any other tortious claim they could make.

And the West Memphis Three are on ten years unsupervised probation. No reporting to any probation officer. The purpose of unsupervised probation is to monitor the file. If any one of them is arrested for a new offense or a violation of probation, then the court will be notified and that probationer could be returned to prison for 21 years. 

This quirk in the law allowed all the parties to save face.

But what about Steven Branch? Christopher Byers? Michael Moore? Did the Alford plea deliver  justice? The prosecution says it did. That is why the prosecution is closing its file. There is(are) no other suspect(s) to prosecute.

And what about the West Memphis Three? How many people can say they pled guilty, were sentenced, but still are innocent? Well, actually, there are many who have been convicted, sentenced and still claim they are innocent. The prisons are bursting at the seams with innocent prisoners. Ask them.

And this is why we have the Innocence Project. It took dedication and a sharp focus on the issues to bring about what is perceived by most as justice.



Little Caylee, Little Justice!

What went wrong?

Or did it?

While I discuss this travesty, reflect on why I believe our Courts of Justice are more appropriately characterized as Conflict Resolution Centers.

The travesty I refer to is not that Casey Anthony was acquitted. It was the correct decision for the correct reason. The travesty is that the general public was misled as to the purpose of the trial. Because of this misperception the public outrage was misguided and misdirected.

Before I continue, a caveat: I did not watch the entire trial. Consequently, I don’t know all of the evidence. But I do know the evidence, or lack of evidence, that buttresses my position.

Invariably, people who watched the trial wanted justice for Caylee. And when Casey was acquitted, there was outrage, anger. But justice for Caylee would, at most, be a consequence of a guilty verdict.

The reason for the trial was to hold Casey Anthony responsible for her daughter’s death. But if the trial was a search for the truth, then all must abide by the rules that guide the litigants in their pursuit of justice.

Some of these rules pertain to the presumption of innocence, the burden of proof and evaluation of witness testimony. To better understand the process, it helps to demystify the trial and application of these rules. There are basically three distinct parts to a trial. Jury selection, or ” voir dire” (meaning to speak the truth), allows the attorneys to question each prospective juror in an affort to find bases to have the judge remove an unfavorable juror due to state of mind (“I can’t presume someone charged with killing their child as innocent”)or, by statute, is unable to serve ( a convicted felon). Voir dire also allows the attorneys to properly exercise peremptory challenges ( no requirement that the attorney identify the reason for striking the juror ). At the conclusion of voir dire, the jury is empanelled to hear the evidence.

The next phase-trial-permits each side to present opening statements (what the attorney’s evidence expects to establish-with the observation that a criminal defendant need not present evidence since the defendant is presumed innocent ) followed by the calling of witnesses, beginning with the prosecution. At the conclusion of all the evidence (the prosecution leads with its case-in-chief; then the defense, if it chooses, presents its case-in-chief, followed by the prosecution’s rebuttal and the defense surrebuttal ) and the trial phase ends with final arguments based on the evidence and the agreed-upon law.

The last phase- jury deliberation- occurs during  an indeterminate length of discussion after receiving jury instructions from the judge, which each attorney had reviewed and either  accepted or rejected.

If it can be argued there was a miscarriage of justice, then the blame must be placed at the feet of the prosecutors. Why? Because they chose which charges and evidence to present to the jury. They framed their ” theory ” (legal argument) as murder and lying to the police and their “theme” (factual argument) as ” mother love ” versus ” party girl”.

As an aside, if you watch any criminal trials,  you will often hear the prosecution couch their theme in everyday, common emotions ( greed, love, hate ) that everyone understands. Simple to digest.

The defense, in a stunning revelation, identified their theory as Caylee accidentally drowned, but her death was covered up. In laying out his theory, the defense stated that Casey had been sexually abused. I say this was a stunning disclosure because as a criminal defense attorney for 32 years, I don’t recall ever giving an opening statement that I was not absolutely certain I had the evidence to support it, including having prepared the defendant to testify in his defense.

Why is this so important? Because when you make an opening as the defense did, you do a couple of things you should only do with great caution. First, you assume a burden of proof you don’t have.

Second, you give the prosecution an opportunity to attack the defendant in final argument. Ordinarily, a prosecutor can’t attack the defendant in final argument  because of the presumption of innocence. Now the prosecutor can challenge the defendant’s version of what happened and, in the process, cover up or gloss over the weaknesses in their case. In effect, shift the burden by claiming the defense did not prove what it alleged in its opening statement

So, what went wrong? It certainly was not the fault of the jury. Many legal pundits are quick to blame the jury, unless the verdict is as the pundits believe it should be.  However, this was a consciencious jury that followed the law. It has been disclosed that the jury foreman, alone,  took over 400 pages of notes.

It’s not the judge’s fault. Rarely does a judge inject himself/herself into a trial regarding presenting evidence without an attorney’s objection or invitation. They are loathe to intrude in the area of ” trial strategy.”

It’s not the defense attorney’s fault. He presented an opening that was, supposedly, based on good faith (i.e. he believed the evidence permitted this interpretation).

The fault must lie with the prosecution because, from my perspective, the prosecutors went out on a limb in presenting evidence from an expert that had never been peer-reviewed by others in that field ( odor detected in the car trunk ) to establish Caylee was in the trunk, decomposing. Without peer review, the opinion has not been tested to establish the expert’s credibility. Undoubtedly, the jury was instructed they could consider the expert’s education, the bases for his opinion, what he relied on in drawing his opinion, etc.  

But the most inexcusable mistake must have occurred in the defense’s final argument. Without any evidence in the record, the prosecution allowed the defense to argue that Caylee accidentally drowned. Before final arguments, the judge ruled that the defense could not comment on Casey having been sexually abused. Why? Because no evidence existed in the record. You cannot argue facts outside the record, unless opposing counsel doesn’t object and you can defend your position as grounded in good faith.

Even if the prosecution had not moved before arguments to restrict the defense’s reliance on accidental drowning, they could have objected during final argument that counsel was arguing facts outside the record. Had they objected,  I believe the judge would have sustained the objection and prevented counsel from relying on this argument.

There was no justice for Caylee in the jury’s verdict. Nor will there be. Nobody else will be charged with her death, intentional or otherwise. There was only resolution of a conflict. The prosecution said that Casey killed her daughter; the jury’s verdict said otherwise.

Based on the evidence presented by the prosecutors-and the argument the defense was allowed to make-the jury reached the correct verdicts for the correct reasons. But this begs the question: Where is justice for a little girl who left this world in a garbage bag and may be remembered as a footnote to a controversial  trial?

Little Caylee, little justice!

Off to war?

What is our position in Libya? And where is the money coming from to finance our involvement in this non-war?

How about taking the 50 million dollars it costs the United States each day to be in Libya and redirect it to our wars at home? The war on poverty. The war on environmental pollution. The war on crime, and the untold collateral consequences to communities.

What about more aggressive investment in our crumbling infrastructure? Our educational institutions? The homeless?

If we are going to spend money we don’t have, at least spend it where we get the greatest return. In my opinion, investing in our country can never be a mistake. I recall the late 60’s-early 70’s when there were many community-based  corrections programs that worked tirelessly to rehabilitate felons. 

These programs helped make the transition from prison to community easier. It was done through therapy, education and employment. But then the focus shifted from rehabilitation to retribution or, as one judge affectionately referred to it, “just desserts.”

As an ex-felon who had many tours of Minnesota’s juvenile and adult “correctional” institutions, and benefited from participating in a  community-based program that resulted in a pardon and eventually becoming a criminal defense attorney, I hope that we, as a society, can find our way.

Dire economic conditions awaken Ohio Govenor to reality of non-violent offenders

Ohio Gov. Kasich, in an effort to grapple with Ohio’s economy, recently stated  during an interview his plan to release some non-violent offenders early from their prison sentence.

While there may be much to criticize in Kasich’s plan, his early release of non-violent felons is premised on two well-founded observations. First, most non-violent felons are housed with, and exposed to, extemely violent felons. Consequently, these non-violent felons return to society more bitter and frustrated than they were when entering prison.

Secondly, the cost of custodial containment in prison is significantly more expensive than confinement in a community-based program.

In addressing Ohio’s economic plight, Gov. Kasich’s early release of non-violent felons may have a salutory effect on Ohio: early reintegration of some of its citizens who have the opportunity to contribute to the economy and save Ohio.

Jobs for Ex-Offenders

There has been much discussion recently about Chicago Mayor Daley aggressively reaching out to unemployed felons. Wow!

It is indisbutable that most felons return to prison due to an inability to find stable, respectable work. This problem is only compounded by the irrefutable studies confirming what most reasonably intelligent people know: the vast majority of felons return to society.

It is not that Mayor Daley was the most enlightened public servant to recognize this phenomenon. Rather, he simply acknowledged the obvious. Felons, as all of us, are part of the essential fabric of society and recognize their concomitant responsibility to family and community.

And many of them, when given the opportunity, have become rehabilitated and are successful, contributing citizens.  They inspire the rest of us.

Charlie Sheen: Zone defense

As Charlie Sheen’s awkward and bizarre rantings are in full bloom-courtesy of the ever accommodating media-I’m left with the nagging issue of whether he is or is not in the midst of a psychotic breakdown fueled by drug abuse.

I don’t know if he is abusing drugs, but I recognize his behavior. No, I’m not a psychiatrist or a drug abuse interventionist. I am a criminal defense attorney who, as a teenager, wasted my years abusing most drugs-from herbs to chemicals and shoot -dope-punctuated by stints in juvenile and adult “correctional” facilities.

As I struggled to free myself from the shackles of chemical dependency, eventually completing a prison sentence followed by a govenor’s pardon and law school, I remember three incidents that I cannot forget. The first occurred while in prison at St.Cloud Reformatory for Men in St.Cloud, Mn. A person I’ll call Lenny approached my cell one day.  I’d known Lenny on the streets and we’d gotten high a few times together.

I’d noticed in the joint that Lenny was starting to act bizarre so I avoided him. One day I could not. As he approached my cell,  he looked up and down the galley and then said, “Hey, you got any speed?” I told him I didn’t do drugs anymore. He then said, “You ain’t got to do any or have any. Jus’ lemme touch your hand. I can get high from that!”

I simply dismissed Lenny as crazy and let it go.  Until it happened again. This time it occurred while I was attending the University of Minnesota working on my B.A. in political science. I had come out of prison through a community-based therapy program to attend college. While there I ran into an old partner who I had run with in the streets and had been locked down with  in the joint. Larry was going to the U of M as well, but now when I saw him his personality had changed dramatically. It was a warm summer day and Larry stood off the sidewalk, on the grass. He was wearing a judo uniform and his hair and beard were flowing down his shoulders.

When he saw me looking at him,  he asked how I was doing. “Fine,” I replied. He then asked if I wanted some energy to help me study.  I said no, believing he was referring to dope. He wasn’t. Instead, when I rejected the offer, he stated that he wanted me to reach to the sky with him and we could absorb the sun’s energy together.

The last encounter occurred when I bumped  into an old friend.  Michael had moved out of state, but now he was back. When I saw him, and after superficial talk,  he said to me, “Barry, you ever feel like you’re standing over there when you’re really standing over here?” He then  accused me of standing on his feet.  I abruptly ended the conversation and left Michael standing by himself.

All three persons  shared two traits. They all had been long-term drug abusers.  And  they tenaciously clung to their Zone where they had developed and nutured their alter ego-the hip, slick-talking , easy-go-lucky player living on the edge, while their loved ones died a little each day as they watched  him/her descend  into chaos and personal torment.

Intervention may or may not work. Charlie Sheen needs to get out of this Zone to survive. Hopefully, someone other than the media can reach him and he can wake up from what appears to be a drug-induced state.

Until someone connects  with Charlie Sheen, all one can do is wish him and his family well.


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